Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case: (i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b). (c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence. (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable. (e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment. (f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable. (g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document. (h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 4 contracts
Sources: Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc)
Erroneous Payments. (a) If the Administrative Agent Administrator (x) notifies a Lender Purchaser or Secured an Indemnified Party, or any Person who has received funds on behalf of a Lender Purchaser or Secured an Indemnified Party (any such LenderPurchaser, Secured Indemnified Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent Administrator has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrator) received by such Payment Recipient from the Administrative Agent Administrator or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Secured Indemnified Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrator may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent Administrator pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative AgentAdministrator, and such Lender Purchaser or Secured Indemnified Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent Administrator may, in its sole discretion, specify in writing), return to the Administrative Agent Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative AgentAdministrator) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent Administrator in same day funds at the greater of the Federal Funds sum of (i) the Prime Rate plus (ii) 1.0% and a rate determined by the Administrative Agent Administrator in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent Administrator to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or Purchaser and Indemnified Party and any Person who has received funds on behalf of a Lender Purchaser or Secured PartyIndemnified Party (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent Administrator (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent Administrator (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent Administrator (or any of its Affiliates), or (z) that such Lender Purchaser or Secured Indemnified Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent Administrator to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Purchaser or Secured Indemnified Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent Administrator of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent Administrator pursuant to this Section 9.16(bclause (ii). For the avoidance of doubt, the failure to deliver a notice to the Administrator pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to the foregoing clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Purchaser and Indemnified Party hereby authorizes the Administrative Agent Administrator to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser or Secured Indemnified Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent Administrator to such Lender Purchaser or Secured Indemnified Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrator has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrator may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amountreason, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender Administrator shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser or Secured Party Indemnified Party, to the rights and interests of such Purchaser or Indemnified Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Recourse Obligations owed by the Borrower Seller or any other Loan Seller Party, exceptPurchaser, in each caseAdministrator, Purchaser Agent or Funding Source; provided that this Section 11.10 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Recourse Obligations of the Seller relative to the amount (and/or timing for payment) of the Recourse Obligations that would have been payable had such Erroneous Payment not been made by the Administrator; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from Administrator from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Transaction Document), the Seller for the purpose of making such Erroneous Paymenta payment on the Recourse Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent Administrator for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of the Administrative AgentAdministrator, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser or Indemnified Party, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Recourse Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 4 contracts
Sources: Receivables Purchase Agreement (Cencora, Inc.), Receivables Purchase Agreement (Cencora, Inc.), Receivables Purchase Agreement (Amerisourcebergen Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Lender or Secured Party, or any Person (other than any of its Subsidiaries) who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 13.19 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Lender, Secured Party, Party or any Person (other than any of its Subsidiaries) who has received funds on behalf of a Lender, Issuing Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreementb). For the avoidance of doubt, the Borrower or failure to deliver a notice to the Administrative Agent pursuant to this clause (b) shall not have any Loan Party shall continue effect on a Payment Recipient’s obligations pursuant to be deemed to have performed its payment obligations with respect to any amount that is actually paid by clause (a) above or on behalf of) the Borrower whether or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencenot an Erroneous Payment has been made.
(dc) In The Administrative Agent, the Lenders and the other Secured Parties hereto agree that irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”); provided that this Section 13.19 shall not be interpreted to increase (such rightsor accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount Obligations of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided, exceptfurther, in each casethat for the avoidance of doubt, this clause shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Credit Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(fd) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(ge) Each party’s The obligations, agreements and waivers of the Administrative Agent, the Lenders and the other Secured Parties under this Section 9.16 13.19 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Credit Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 4 contracts
Sources: Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance Group, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.04 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Letter of Credit Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Credit Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Letter of Credit Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b)8.05. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.05(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.05(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In (i) Notwithstanding anything contained in Section 8.05, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform approved by Administrative Agent as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Credit Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 4 contracts
Sources: Credit Agreement (Vinebrook Homes Trust, Inc.), Credit Agreement (Vinebrook Homes Trust, Inc.), Increase Agreement, Joinder, and Second Amendment to Credit Agreement (Vinebrook Homes Trust, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.16 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Letter of Credit Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Letter of Credit Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.16(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.16(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes promissory notes evidencing such Loans to the Borrower Borrowers or the Administrative Agent (for prompt return but the failure of such Person to deliver any such promissory notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.16 (but excluding, in all events, any assignment consent or approval requirements (other than from the Borrower, to the extent the Borrower would have a consent right over such assignment in accordance with the terms of Section 13.6 (such consent not to be unreasonably withheld or delayed)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party Party, to the rights and interests of such Lender, Letter of Credit Issuer or Secured Party, as the case may be) under the Loan Credit Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Credit Parties’ Obligations under the Loan Documents”). If any amount Credit Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) under an Erroneous Payment Deficiency Assignment and no such subrogation shall apply to the extent an Erroneous Payment is, and with respect to the amount of such Erroneous Payment that is, compromised of funds of a Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Credit Party) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Credit Party; provided that this Section 12.16 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each case, the Obligations of the Borrowers or any other Credit Party (including indemnification obligations of the Borrowers or any other Credit Party under the Credit Documents to the extent relating to principal, interest, premium or fees or similar payment obligations under the Credit Documents) relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the any Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 12.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Letter of Credit Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Credit Document.
(h) For This Section 12.16 shall solely be an agreement between the avoidance of doubtAdministrative Agent, the Lenders and the Letter of Credit Issuers; provided that, the Borrowers and the other Credit Parties hereby acknowledge and consent to the provisions and agreements set forth in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent12.16.
Appears in 4 contracts
Sources: Credit Agreement (GoDaddy Inc.), Credit Agreement (GoDaddy Inc.), Credit Agreement (GoDaddy Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two one (1) Business Days Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or . If a Payment Recipient receives any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment sent by the Administrative Agent or any of its Affiliates or if a Payment Recipient otherwise does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (be in error absent written confirmation from the Administrative Agent to the contrary) or (B) contrary and such Payment Recipient shall be on notice that an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b)Erroneous Payment.
(cb) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(dc) In the event that For so long as an Erroneous Payment (or portion thereof) is has not recovered been returned by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon ) to the Administrative Agent’s notice to such Lender at any time Agent after demand therefor in accordance with immediately preceding clause (with a copy to the Borrowera), (i) the Administrative Agent may elect, in its sole discretion on written notice to such Lender shall be deemed to have assigned its Loans (but not its Commitments) Lender, Issuing Bank or Secured Party, that all rights and claims of the relevant Class such Lender, Issuing Bank or Secured Party with respect to which the Loans or other Obligations owed to such person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment was made (the “Erroneous Payment Impacted ClassCorresponding Loan Amount”) shall immediately vest in an the Administrative Agent upon such election; after such election, the Administrative Agent (x) may reflect its ownership interest in Loans in a principal amount equal to the Erroneous Payment Return Deficiency Corresponding Loan Amount in the Register, and (y) upon five (5) Business Days’ written notice to such Lender, Issuing Bank or Secured Party, may sell such Loan (or such lesser amount as the Administrative Agent may specifyportion thereof) (such assignment in respect of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request Corresponding Loan Amount in accordance with the terms Section 9.04 of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender such Lender, Issuing Bank or Secured Party shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender Lender, Issuing Bank or Secured Party (and/or against any recipient Payment Recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignmentsuch Loan, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender such Lender, Issuing Bank or Secured Party under the Loan Documents with respect to each the Erroneous Payment Return Deficiency (such rightsDeficiency. For the avoidance of doubt, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (no vesting or on behalf of) the Borrower or any other Loan Party sale pursuant to the Administrative Agent, then foregoing clause (i) will reduce the Commitments of any Lender or Secured Party who received Issuing Bank and such Erroneous Payment Commitments shall be deemed to have received an equal amount from remain available in accordance with the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicableterms of this Agreement.
(ed) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(fe) To the extent permitted by applicable law, no No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 8.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 3 contracts
Sources: Incremental Assumption and Amendment Agreement (QXO, Inc.), Incremental Assumption and Amendment Agreement (QXO, Inc.), Term Loan Credit Agreement (QXO, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.10 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.10(b).. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.10(a) or on whether or not an Erroneous Payment has been made
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instanceinterest), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 3 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or other Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or other Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.17 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or other Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, other Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or other Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.17(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.17(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.17(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or other Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or other Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 11.4 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or other Secured Party, to the rights and interests of such Lender, Issuing Bank or Secured Party Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.17(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.17 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 3 contracts
Sources: Credit Agreement (OneWater Marine Inc.), Credit Agreement (OneWater Marine Inc.), Credit Agreement (OneWater Marine Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Lender Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative AgentAgent in its sole discretion) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) . Without limiting the immediately preceding clause (a)paragraph, each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, ) in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf Payment Recipient to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.19(a).
(cb) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(dc) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower)time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (iv) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement solely with respect to any such Erroneous Payments Deficiency Assignment (and not to any other assignment, transfer or participation), and (v) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but discretion and subject to, and to the Borrower’s consent rights as set forth in accordance with, the provisions of Section 10.07(b)10.07, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid LenderErroneous Payment Subrogation Rights”) (provided that the Borrower’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicableDeficiency Assignment).
(ed) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Party, or realized as proceeds of the Collateral and applied, for the purpose of making such Erroneous Paymenta payment of any Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 9.19 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(hg) For Notwithstanding anything herein or in any other Loan Document, the Borrower and the other Loan Parties (and their respective Subsidiaries) shall have no liabilities or obligations directly or indirectly arising out of this Section 9.19 in respect of any Erroneous Payment (other than having consented to the assignment referenced in Section 9.19(c) above); provided, that the foregoing shall not limit the terms of Sections 10.04 and 10.05 (but for the avoidance of doubt, the provisions in this Section 9.16 are not intended toit is understood and agreed that, and shall notif a Loan Party has paid principal, affect the rights and obligations of the Borrower interest or any other amounts owed to a Secured Party, Section 10.04 and Section 10.05 shall not require any such Loan Party under the Loan Documents to the extent relating to principalpay additional amounts that are, interestby way of Section 10.04 and Section 10.05, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date foreffectively duplicative of such previously paid amounts), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Irobot Corp), Credit Agreement (Irobot Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Lender, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or and Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Lender, Issuing Lender, Secured Party, Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses clause (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or and Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.14(b). For the avoidance of doubt, the failure to deliver a notice to Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to the that Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amountreason, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrowers; provided that this Section 9.14 shall not be interpreted to increase (or accelerate the Borrower due date for), or any other Loan Partyhave the effect of increasing (or accelerating the due date for), exceptthe Obligations of Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by Administrative Agent; provided, in each casefurther, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Document), Borrowers for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For . Notwithstanding anything to the avoidance of doubtcontrary herein or in any other Loan Document, the provisions nothing in this Section 9.16 are not intended to, and 9.14 shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had any such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 10.02 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawApplicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.12 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Credit Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Credit Parties’ Obligations under the Loan Documents”). If any amount Credit Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; provided that this Section 12.15 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 12.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Credit Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Mach Natural Resources Lp), Credit Agreement (Mach Natural Resources Lp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Amendment No. 2 (Global Business Travel Group, Inc.), Amendment No. 1 (Global Business Travel Group, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.9.16
Appears in 2 contracts
Sources: Credit Agreement (Xerox Corp), Credit Agreement (Xerox Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Swingline Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank, Swingline Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, Swingline Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 7.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Swingline Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, Issuing Bank, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Swingline Lender or Secured Party(and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured PartyLender, Issuing Bank or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Bank or Swingline Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Bank or Swingline Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Swingline Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Bank or Swingline Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans Advances (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a an Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans Advances to the applicable Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans Advances subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Becton Dickinson & Co), Credit Agreement (Becton Dickinson & Co)
Erroneous Payments. (a) If the Administrative Term Loan Facility Agent (x) notifies a Term Lender or Secured Party, or any Person who has received funds on behalf of a Term Lender or Secured Party (any such Lender, Secured Party Term Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Term Loan Facility Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Term Loan Facility Agent) received by such Payment Recipient from the Administrative Term Loan Facility Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Term Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Term Loan Facility Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Term Loan Facility Agent pending its return or repayment as contemplated below in this Section 9.16 10.15 (Erroneous Payments) and held in trust for the benefit of the Administrative Term Loan Facility Agent, and such Term Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Term Loan Facility Agent may, in its sole discretion, specify in writing), return to the Administrative Term Loan Facility Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Term Loan Facility Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Term Loan Facility Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Term Loan Facility Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Term Loan Facility Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Term Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Term Loan Facility Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Term Loan Facility Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Term Loan Facility Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Term Loan Facility Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Term Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two Business Day Days of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Term Loan Facility Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Term Loan Facility Agent pursuant to this Section 9.16(b(b). For the avoidance of doubt, the failure to deliver a notice to the Term Loan Facility Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Term Lender or Secured Party hereby authorizes the Administrative Term Loan Facility Agent to withhold, set off, net and apply any and all amounts at any time owing to such Term Lender or Secured Party under any Loan Finance Document, or otherwise payable or distributable by the Administrative Term Loan Facility Agent to such Term Lender Party under any Finance Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Term Loan Facility Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Term Loan Facility Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Term Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Facility Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Term Lender or Secured Party , to the rights and interests of such Term Lender ) under the Loan Finance Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Term Loan Obligations owed by the Borrower or any other Loan Party; provided that this Section 10.15 (Erroneous Payments) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Term Loan Obligations of the Borrower relative to the amount (and/or timing for payment) of the Term Loan Obligations that would have been payable had such Erroneous Payment not been made by the Term Loan Facility Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Term Loan Facility Agent from from, or on behalf of (including through the exercise of remedies under any Finance Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Term Loan Obligations.
(fe) To the extent permitted by applicable lawGovernment Rule, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Term Loan Facility Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 10.15 (Erroneous Payments) shall survive the resignation or replacement of the Administrative Term Loan Facility Agent, any transfer of rights or obligations by, or the replacement of, a Term Lender, the termination of the Term Loan Facility Debt Commitments and/or the repayment, satisfaction or discharge of all Term Loan Obligations (or any portion thereof) under any Loan Finance Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Term Loan Facility Agreement (Cheniere Corpus Christi Holdings, LLC), Term Loan Facility Agreement (Cheniere Energy, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, the Issuing Bank, any other holder(s) of the Obligations or any Person other Person(s) who has received funds on behalf of a Lender Lender, the Issuing Bank or Secured Party any other holder(s) of the Obligations (any such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other recipientrecipient(s), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after its receipt of any notice under immediately succeeding delivered pursuant to clause (b)) below) that any funds received by such Payment Recipient from the Administrative Agent Agent, or any of its Affiliates Affiliates, were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall shall, at all times times, remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from from, and including including, the date on which such Erroneous Payment (or portion thereof) was received by such Payment Recipient to to, and including, the date on which such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of delivered from the Administrative Agent to any Payment Recipient under pursuant to this clause (a) shall be conclusiveconclusive and binding, absent manifest error.
(b) Without limiting anything in the immediately preceding foregoing clause (a), each Lender or Secured PartyLender, or any Person who has received funds on behalf the Issuing Bank, each other holder(s) of a Lender or Secured Party, the Obligations party hereto and each other Payment Recipient party hereto hereby further agrees that that, if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (xI) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (yII) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (zIII) that such Lender or Secured PartyLender, Issuing Bank, other holder(s) of the Obligations or other such recipient, Payment Recipient(s) otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such casecase of the foregoing:
(i) it acknowledges and agrees that (A) in the any such case of the immediately preceding clauses (xb)(I) or (yb)(II), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) ), or (B) an error and mistake has been made (in the any such case of the immediately preceding clause (zb)(III)), an error has been made, in each casecase of the foregoing clauses (b)(i)(A) and (b)(i)(B), with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient(s) shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all eventsany event, within one (1) Business Day of its obtaining knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(bclause (b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Safepoint Holdings, Inc.), Credit Agreement (Safepoint Holdings, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, the Issuing Bank, any other holder(s) of the Obligations or any Person other Person(s) who has received funds on behalf of a Lender Lender, the Issuing Bank or Secured Party any other holder(s) of the Obligations (any such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other recipientrecipient(s), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after its receipt of any notice under immediately succeeding delivered pursuant to clause (b)) below) that any funds received by such Payment Recipient from the Administrative Agent Agent, or any of its Affiliates Affiliates, were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall shall, at all times times, remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from from, and including including, the date on which such Erroneous Payment (or portion thereof) was received by such Payment Recipient to to, and including, the date on which such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of delivered from the Administrative Agent to any Payment Recipient under pursuant to this clause (a) shall be conclusiveconclusive and binding, absent manifest error.
(b) Without limiting anything in the immediately preceding foregoing clause (a), each Lender or Secured PartyLender, or any Person who has received funds on behalf the Issuing Bank, each other holder(s) of a Lender or Secured Party, the Obligations party hereto and each other Payment Recipient party hereto hereby further agrees that that, if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (xI) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (yII) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (zIII) that such Lender or Secured PartyLender, Issuing Bank, other holder(s) of the Obligations or other such recipient, Payment Recipient(s) otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such casecase of the foregoing:
(i) it acknowledges and agrees that (A) in the any such case of the immediately preceding clauses (xb)(I) or (yb)(II), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) ), or (B) an error and mistake has been made (in the any such case of the immediately preceding clause (zb)(III)), an error has been made, in each casecase of the foregoing clauses (b)(i)(A) and (b)(i)(B), with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient(s) shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all eventsany event, within one (1) Business Day of its obtaining knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(bclause (b).
(c) Each Lender or Secured Party Lender, the Issuing Bank, each other holder of the Obligations party hereto and each other Payment Recipient party hereto hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or Secured Party such other Payment Recipient(s) under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party Lender, the Issuing Bank, such other holder(s) of the Obligations and/or such other Payment Recipient(s) from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding foregoing clause (a), from any Lender Lender, the Issuing Bank, any other holder(s) of the Obligations or any other Payment Recipient(s) that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient other recipient who received such Erroneous Payment (or portion thereof) on its the respective behalfbehalf of any of the foregoing) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, at any time (with a copy to the Borrower), time: (i) such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, shall be deemed to have assigned (to the extent it has any such Loans) its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the such Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and such Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, is hereby (together with the Borrower) deemed to execute have executed and deliver delivered an Assignment and Assumption Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Agreement by reference pursuant to Debtdomain, Intralinks, Syndtrak, or a Platform substantially similar electronic transmission system as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and further, such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, shall deliver any Notes Note(s) evidencing any such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), ; (ii) the Administrative Agent Agent, as the assignee Lender Lender, shall be deemed to acquire the Erroneous Payment Deficiency Assignment, ; (iii) upon such deemed acquisition, the Administrative Agent Agent, as the assignee Lender Lender, shall become a Lender, as applicable, hereunder with respect to the Issuing Bank or such Erroneous Payment Deficiency Assignment and other type of holder of the assigning Lender shall cease to be a LenderObligations, as applicablethe case may be, hereunder with respect to such Erroneous Payment Deficiency Assignment, and further, the assigning Lender, the Issuing Bank or such other holder(s) of the Obligations shall cease to be a Lender, the Issuing Bank or such other holder of the Obligations, as the case may be, hereunder with respect to such Erroneous Payment Deficiency Assignment, but excluding, for the avoidance of doubt, its such Person’s obligations under the indemnification provisions of this Agreement and its applicable Commitments Commitments, which shall survive as to such assigning Lender Lender, Issuing Bank or other holder(s) of the Obligations; and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and and, upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Lender, the Issuing Bank, the other applicable holder(s) of the Obligations or the other such applicable Payment Recipient(s), as the case may be, shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be (and/or against any recipient that receives funds on its the respective behalfbehalf of any of the foregoing). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or the Issuing Bank, and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all of the rights and interests of the applicable Lender Lender, the Issuing Bank or Secured Party any other applicable holder(s) of the Obligations under the Loan Credit Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Erroneous Payment Rights under the Loan DocumentsSubrogation Rights”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The Each of the parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party, except, in each case, to the extent that such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawApplicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and each party hereto, to the extent constituting a Payment Recipient, hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s respective obligations, agreements and waivers under this Section 9.16 10.11 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a any Lender, the Issuing Bank or any other holder(s) of the Obligations, the termination of any or all of the Commitments Commitments, and/or the repayment, satisfaction or discharge of any or all of the Obligations (or any portion thereof) under any Loan Credit Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Safepoint Holdings, Inc.), Credit Agreement (Safepoint Holdings, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.13(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 9.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.13(a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 9.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower Borrowers or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and the Borrower shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Loan Agreement (RCM Technologies, Inc.), Loan Agreement (RCM Technologies, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, L/C Issuer, or any Person who has received funds on behalf of a Lender or Secured Party L/C Issuer (any such Lender, Secured Party L/C Issuer or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party L/C Issuer or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made within ten (10) Business Days after the date of receipt by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms applicable Payment Recipient of the Loan Documentssuch Erroneous Payment), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party L/C Issuer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two ten (10) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyPayment Recipient, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Payment Recipient shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Payment Recipient hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party Party, to the rights and interests of such Lender, L/C Issuer or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party Party, or realized as proceeds of the Collateral and applied, for the purpose of making such Erroneous Paymenta payment on the Obligations and is not otherwise repaid or returned to a Loan Party by the Administrative Agent, any Lender or any of their respective Affiliates, whether pursuant to a legal proceeding or otherwise.
(fe) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(f) Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, in no event shall the occurrence of an Erroneous Payment (or the existence of any Erroneous Payment Subrogation Rights or other rights of the Administrative Agent in respect of an Erroneous Payment) result in the Administrative Agent becoming, or (y) upon being deemed to be, a Lender hereunder or the holder of any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicableLoans hereunder.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the applicable Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For In addition, notwithstanding anything to the contrary herein or in any other Loan Document no Erroneous Payment shall, constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise, neither the Borrower nor any other Loan Party shall have any liability for any actions or inactions of any Payment Recipient, including any failure by any Payment Recipient to comply with the above provisions of this Section 9.14. Notwithstanding anything to the contrary in this Section 9.14 or in any other Loan Document, the Borrower and the Loan Parties shall have no obligations, liabilities or responsibilities for any actions, consequences or remediation (including the repayment or recovery of any amounts) contemplated by this Section 9.14 (and, for the avoidance of doubt, the provisions it is understood and agreed that if a Loan Party has paid principal, interest or any other amounts owed pursuant to a Loan Document, nothing in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower 9.14 (or Section 10.05 (or any other equivalent provision) in connection therewith) shall require any such Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date forpay additional amounts that are duplicative of such previously paid amounts), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (ContextLogic Holdings Inc.), Credit Agreement (ContextLogic Holdings Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under this Agreement and any other Loan Document, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement or any sourceother Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Initial Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Initial Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (NSCALE LTD), Credit Agreement (NSCALE LTD)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Parent or the Borrower; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (CoreWeave, Inc.), Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 12.15(a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 12.15(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Credit Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Credit Parties’ Obligations under the Loan Documents”). If any amount Credit Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; provided that this Section 12.15 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 12.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Credit Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Infinity Natural Resources, Inc.), Credit Agreement (Infinity Natural Resources, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.18 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days [REDACTED] thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 10.18(a) shall be conclusive, absent manifest error.. US-DOCS\169476957.30
(b) Without limiting immediately preceding clause (aSection 10.18(a), each Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Lender, Issuing Bank, Secured Party, Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it It acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Such Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.18(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.18(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.18(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Financing Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceFinancing Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 10.18(a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such US-DOCS\169476957.30 Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Financing Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan PartyBorrower Entity; provided that, exceptthis Section 10.18 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations of the Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided further that, for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the Borrower exercise of remedies under any Financing Document), the Borrowers or any other Loan Party Borrower Entity for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 10.18 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Financing Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Financing Agreement (CIM Opportunity Zone Fund, L.P.), Financing Agreement (CIM Opportunity Zone Fund, L.P.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.12(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or failure to deliver a notice to the Administrative Agent pursuant to this Section 10.12(b) shall not have any Loan Party shall continue effect on a Payment Recipient’s obligations pursuant to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (Section 10.12(a) or on behalf of) the Borrower whether or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that not an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicablemade.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Everi Holdings Inc.), Credit Agreement (Everi Holdings Inc.)
Erroneous Payments. (a) If the Administrative Term Agent (x) notifies a Lender or ▇▇▇▇ ▇▇▇▇▇▇, Secured Party, or any Person who has received funds on behalf of a Term Lender or Secured Party (any such Term Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Term Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Term Agent) received by such Payment Recipient from the Administrative Term Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Term Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Term Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Term Agent pending its return or repayment as contemplated below in this Section 9.16 8.27 and held in trust for the benefit of the Administrative Term Agent, and such Term Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Term Agent may, in its sole discretion, specify in writing), return to the Administrative Term Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Term Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Term Lender, Secured Party, Party or any Person who has received funds on behalf of a Term Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Term Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Term Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Term Agent (or any of its Affiliates), or (z) that such Term Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Term Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Term Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Term Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Term Agent pursuant to this Section 9.16(b8.27(b). For the avoidance of doubt, the failure to deliver a notice to the Term Agent pursuant to this Section 8.27(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.27(a) or on whether or not an Erroneous Payment has been made.
(c) Each Term Lender or Secured Party hereby authorizes the Administrative Term Agent to withhold, set off, net and apply any and all amounts at any time owing to such Term Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Term Agent to such Term Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Term Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Term Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Term Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Term Agent’s notice to such Term Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Term Lender shall be deemed to have assigned its Term Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Term Agent may specify) (such assignment of the Term Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Term Agent in such instance)), and is hereby (together with the Borrower Representative) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform platform such as ClearPar as to which the Administrative Term Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Term Lender shall deliver any Term Notes evidencing such Term Loans to the Borrower Borrowers or the Administrative Term Agent (for prompt return but the failure of such Person to deliver any such Term Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Term Agent as the assignee Term Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Term Agent as the assignee Term Lender shall become a Term Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Term Lender shall cease to be a Term Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender Term Lender, (D) the Term Agent and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Term Agent may will reflect in the Register its ownership interest in the Term Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative .
(ii) Subject to Section 8.9 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrowers or otherwise)), the Term Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Term Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Term Lender shall be reduced by the net proceeds of the sale of such Term Loan (or portion thereof), and the Administrative Term Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇ ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Term Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except or other distribution in respect of principal and interest, received by the Term Agent on or with respect to the extent that the Administrative Agent has sold a Loan (or portion thereof) any such Term Loans acquired from such Term Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Term Loans are then owned by the Term Agent) and (y) may, and irrespective of whether in the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests sole discretion of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rightsTerm Agent, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If be reduced by any amount of specified by the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Term Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party in writing to the Administrative Agent, then the applicable Term Lender or Secured Party who received such Erroneous Payment shall be deemed from time to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicabletime.
(e) The parties hereto agree that (x) irrespective of whether the Term Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Term Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Term Lender or Secured Party, to the rights and interests of such Term Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Term Loans that have been assigned to the Term Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; provided that this Section 8.27 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Term Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Term Agent from the Borrower or any other Loan Party Borrowers for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Term Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.27 shall survive the resignation or replacement of the Administrative Term Agent, any transfer of rights or obligations by, or the replacement of, a Term Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Second Lien Term Loan Agreement (Mediaco Holding Inc.), Term Loan Agreement (Mediaco Holding Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, the Issuing Lender or a Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 10.13(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.13 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 10.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 10.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 10.13(a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 10.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and the Borrower shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Lantheus Holdings, Inc.), Credit Agreement (Lantheus Holdings, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer Bank or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Pedevco Corp), Credit Agreement (Pedevco Corp)
Erroneous Payments. Each Secured Party hereby agrees that (ax) If if the Collateral Agent or the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or such Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Collateral Agent or the Administrative Agent Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by any such Payment Recipient Secured Party from the Collateral Agent or the Administrative Agent Agent, as applicable, or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Secured Party (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalfParty) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two one (1) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)Day thereafter, return to the Collateral Agent or the Administrative Agent Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Secured Party fails to return the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Collateral Agent or the Administrative Agent, as applicable, by such Payment Recipient Business Day, such Secured Party shall also pay the Collateral Agent or the Administrative Agent, as applicable, interest thereon in respect of each day after such Business Day to the date such amount is repaid to the Collateral Agent or the Administrative Agent Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by the Collateral Agent or the Administrative Agent Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, effect and (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Secured Party shall not assert any right or claim to an the Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Collateral Agent or the Administrative Agent Agent, as applicable, for the return of any Erroneous Payment Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation . A notice of the corresponding rights under the Loan Documents, Secured Hedge Agreements Collateral Agent or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, as applicable, to any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Secured Party under the Loan Documents to the extent relating to principalthis clause (i) shall be conclusive, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agentabsent manifest error.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.14(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.14(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (aSection 9.14(a), each Lender or Lender, L/C Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.14(a).
(d) In [Reserved].
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party Party, to the rights and interests of such Lender, L/C Issuer or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of, the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParty.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Second Amended and Restated Credit Agreement (Valvoline Inc), Amendment and Restatement Agreement (Valvoline Inc)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.10 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.10(b).. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.10(a) or on whether or not an Erroneous Payment has been made
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instanceinterest), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 10.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender L▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.10 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Erroneous Payments. (a) If the Administrative Agent Each Lender and other Secured Party hereby agrees that (x) if any Administrative Agent notifies a Lender or Secured Party, or any Person who has received funds on behalf of a such Lender or Secured Party (any that such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient Lender or Secured Party from the such Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two one Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)Day thereafter, return to the such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient Lender or Secured Party to the date such amount is repaid to the such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Secured Party shall not assert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the such Administrative Agent to any Payment Recipient Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Party hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment payment sent by the such Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment Payment (a “Payment Notice”) or repayment, (y) that was not preceded or accompanied by a notice of paymentPayment Notice, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), thenit shall be on notice, in each such case:
(i) it acknowledges and agrees , that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such paymentPayment. Each Lender or Secured Party agrees that, prepayment in each such case, or repayment; and
if it otherwise becomes aware a Payment (iior portion thereof) may have been sent in error, such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events, within no event later than one Business Day of its knowledge of thereafter, return to such Administrative Agent the occurrence amount of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(and/or from any Payment Recipient who received such Erroneous c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but are not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of recovered from any Lender and or Secured Party that has received such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan Payment (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignmentfor any reason, and irrespective of whether the Administrative Agent may be equitably subrogated, the such Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable such Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency such amount and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment.
(f) To . For the extent permitted by applicable lawavoidance of doubt, no Payment Recipient shall assert any right vesting or claim sale pursuant to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to the foregoing clause (xc) any demand, claim or counterclaim by will reduce the Administrative Agent for the return Commitments of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment Lender and such Commitments shall remain available in accordance with the last sentence terms of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicablethis Agreement.
(gd) Each party’s obligations, agreements and waivers obligations under this Section 9.16 9.17 shall survive the resignation or replacement of the any Administrative Agent, Agent or any transfer of rights or obligations by, or the replacement of, a LenderLender or Secured Party, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer Bank or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.interbank
Appears in 1 contract
Sources: Credit Agreement (Sunrun Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous [Willow Tree BDC] Amended and Restated Loan, Security and Collateral Management Agreement #506694681 Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), ) together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Willow Tree Capital Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.,
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 11.12 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether Assignment (to the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (extent that any such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid Loans are then owned by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment may, in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement sole discretion of the Administrative Agent, be reduced by any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made specified by the Administrative AgentAgent in writing to the applicable Lender from time to time.
Appears in 1 contract
Sources: Credit Agreement (Us Energy Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.17 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds applicable Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.. [[DMS:8132210v39:12/11/2025--06:37 PM]]
(b) Without limiting the immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.17(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.17(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.17(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 8.17(a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each Erroneous Payment Return Deficiency such amount and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Parent or any other Loan Party; provided that this Section 8.17 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Parent or any other Loan Party relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Parent or the U.S. Co-Borrower or any other Loan Party for the purpose of making such Erroneous Payment.a payment on the Obligations. [[DMS:8132210v39:12/11/2025--06:37 PM]]
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 8.17 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Genmab a/S)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a 42297167v.11 payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within ten (or on behalf of10) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, ) in each such case:.
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.15(b).
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.CREDIT AGREEMENT – Page 124 42297167v.11
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender or L/C Issuer at any time (with a copy to the Borrower)time, (i) such Lender or L/C Issuer shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or L/C Issuer shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a LenderLender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning L/C Issuer shall cease to be a LenderLender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender or assigning L/C Issuer and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or L/C Issuer and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender Lender, L/C Issuer or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Erroneous Payment Rights under the Loan DocumentsSubrogation Rights”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, 42297167v.11 including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 10.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (LandBridge Co LLC)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, Party or any (a) Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.-170-
Appears in 1 contract
Sources: Abl Credit Agreement (Prestige Consumer Healthcare Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.22 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyPayment Recipient, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.22(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.22(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.22(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its CommitmentsCommitment) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments Commitment which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitment of any Lender and such Commitment shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 9.04 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.22 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.22 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, the Swingline Lender or Secured Partyan Issuing Bank, or any Person who has received funds on behalf of a Lender, the Swingline Lender or Secured Party an Issuing Bank (any such Lender, Secured Party Swingline Lender, Issuing Bank, or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Swingline Lender, Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Swingline Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyLender, Swingline Lender, Issuing Bank or any Person who has received funds on behalf of a Lender, Swingline Lender or Secured Partyan Issuing Bank, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Swingline Lender or Secured PartyIssuing Bank, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, the Swingline Lender or Secured Party Issuing Bank shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) to promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Swingline Lender or Secured Party and Issuing Bank hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Swingline Lender or Secured Party Issuing Bank under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Swingline Lender or Secured Party from Issuing Bank under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Amendment No. 1 and Agreement (Omega Acquisition, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Swingline Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank, Swingline Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, Swingline Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 7.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Swingline Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, Issuing Bank, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Swingline Lender or Secured Party(and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured PartyLender, Issuing Bank or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Bank or Swingline Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Bank or Swingline Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Swingline Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Bank or Swingline Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans Advances (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a an Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans Advances to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans Advances subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 Section 9.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) . Without limiting immediately preceding clause (a), each Lender or Lender, L/C Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) : it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) and such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.15(b).
(c. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.15(a) or on whether or not an Erroneous Payment has been made. Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant demanded to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party returned under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”Section 9.15(a). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Abl Credit Agreement (Prestige Consumer Healthcare Inc.)
Erroneous Payments. (a) If the Administrative Agent (xi) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (yii) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.10 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Lender, Issuing Bank, Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.10(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 8.10(a).
(d) 152
(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 8.10(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instanceinterest), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) Acceptance with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The .
(ii) Subject to Section 9.08, the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (A) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (B) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (i) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rightsprovided that, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (eii) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that, exceptthis Section 8.10 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided further that, for the avoidance of doubt, immediately preceding clauses (i) and (ii) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Venture Global, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.27 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Parent or the Borrower; provided that this Section 9.27 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may [Investcorp] Loan and Security Agreement not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), ) together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Party (and each of their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.10(b).. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.10(a) or on whether or not an Erroneous Payment has been made. [Investcorp] Loan and Security Agreement
(c) Each Lender or and each Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreasons, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment ; provided that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and 11.10 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including through the exercise of remedies under any Transaction Document), the Borrower for the purpose of making a payment on the Obligations.
(e) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and each Payment Recipient hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation, any defense based on “discharge for value” or any similar doctrine.
Appears in 1 contract
Sources: Loan, Security and Collateral Management Agreement (Investcorp US Private Credit BDC II)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipientPayment Recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a the Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 11.06 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretiondiscretion (and, but unless an Event of Default has occurred and is continuing, subject to, and in accordance with, to the provisions consent of Section 10.07(bthe Borrower), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 10.13 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 10.13 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that without limiting any of the Borrower’s other rights or remedies (whether at law or in equity), Administrative Agent may not make any other Loan Party’s rights such demand under this sentence with respect to any payment an Erroneous Payment unless such demand is made by within ten (or on behalf of10) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank and Secured Party, or any Person who has received funds on behalf Party (and each of a Lender or Secured Party, hereby further their respective successors and assigns) agrees that if it (or any Payment Recipient who on its behalf) receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceCredit Document with respect to any payment or principal, interest, fees or other amounts, against any amount due to the that Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) Agreement with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower Company or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) Administrative Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that (x) irrespective of whether Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Credit Parties’ Obligations under the Credit Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of the Loans that have been assigned to Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Company or any other Loan Credit Party; provided that this Section 9.12(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Company relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Company for the purpose of making such Erroneous Payment. Further, each party hereto agrees that, in the event a Secured Party is the recipient of an Erroneous Payment and such Secured Party fails to return such Erroneous Payment in accordance with Section 9.12(a), then Administrative Agent shall be entitled to (x) collect from the Company or any other Credit Party any Obligations owed by the Company or any other Credit Party to such Secured Party up to and including the amount of the Erroneous Payment, plus any other amounts owed by such Secured Party under the indemnification provisions of this Agreement, and (y) exercise its rights and remedies under Section 9.12(c) until Administrative Agent has received all amounts owed by the Secured Party to Administrative Agent pursuant to Section 9.12(a).
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.12 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Credit Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether Assignment (to the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (extent that any such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid Loans are then owned by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment may, in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement sole discretion of the Administrative Agent, be reduced by any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made specified by the Administrative AgentAgent in writing to the applicable Lender from time to time.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent Each Lender and other Secured Party hereby agrees that (x) if any Administrative Agent notifies a Lender or Secured Party, or any Person who has received funds on behalf of a such Lender or Secured Party (any that such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient Lender or Secured Party from the such Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two one Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)Day thereafter, return to the such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient Lender or Secured Party to the date such amount is repaid to the such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Secured Party shall not assert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the such Administrative Agent to any Payment Recipient Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Party hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment payment sent by the such Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment Payment (a “Payment Notice”) or repayment, (y) that was not preceded or accompanied by a notice of paymentPayment Notice, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), thenit shall be on notice, in each such case:
(i) it acknowledges and agrees , that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such paymentPayment. Each Lender or Secured Party agrees that, prepayment in each such case, or repayment; and
if it otherwise becomes aware a Payment (iior portion thereof) may have been sent in error, such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events, within no event later than one Business Day of its knowledge of thereafter, return to such Administrative Agent the occurrence amount of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(and/or from any Payment Recipient who received such Erroneous c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but are not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of recovered from any Lender and or Secured Party that has received such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan Payment (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignmentfor any reason, and irrespective of whether the Administrative Agent may be equitably subrogated, the such Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable such Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency such amount and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised 216 of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment.
(f) To . For the extent permitted by applicable lawavoidance of doubt, no Payment Recipient shall assert any right vesting or claim sale pursuant to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to the foregoing clause (xc) any demand, claim or counterclaim by will reduce the Administrative Agent for the return Commitments of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment Lender and such Commitments shall remain available in accordance with the last sentence terms of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicablethis Agreement.
(gd) Each party’s obligations, agreements and waivers obligations under this Section 9.16 Section 9.17 shall survive the resignation or replacement of the any Administrative Agent, Agent or any transfer of rights or obligations by, or the replacement of, a LenderLender or Secured Party, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including 121 |US-DOCS\173826183.18|| the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) and any unreimbursed and documented out-of-pocket costs or expenses paid or incurred by such Agent under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or Section 9.26 on behalf of) the Borrower of such Lender or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentenceSecured Party.
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Borrower Parent, Pledgor or any other Loan Credit Party; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each case, the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the 122 |US-DOCS\173826183.18|| extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.12 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Airlines, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person (other than a Credit Party and its Affiliates (other than Affiliated Debt Funds and Sponsor Investors, in each case, in their capacities as Lenders hereunder)) who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns) other than a Credit Party and its Affiliates (other than Affiliated Debt Funds and Sponsor Investors, in each case, in their capacities as Lenders hereunder), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyPayment Recipient, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or such other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two (2) Business Day Days of its knowledge of the occurrence of any of the circumstances described in the immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Facing Agent or Secured PartyCreditor, or any Person who has received funds on behalf of a Lender Lender, Facing Agent or Secured Party Creditor (any such Lender, Facing Agent, Secured Party Creditor or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Facing Agent, Secured Party Creditor or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Facing Agent or Secured Party Creditor shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate (in the case of amounts denominated in Dollars), the Overnight Euro Rate (in the case of amounts denominated in Euro) or the Overnight Sterling Rate (in the case of amounts denominated in Sterling), as applicable, and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Facing Agent, Secured Party, Creditor or any Person who has received funds on behalf of a Lender Lender, Facing Agent or Secured PartyCreditor (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Facing Agent or Secured PartyCreditor, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (BALL Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.portion
Appears in 1 contract
Sources: Credit Agreement (NSCALE LTD)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:.
(i) i. it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) . such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform electronic platforms as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 9.04 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, to the provisions in this Section 9.16 are not intended toextent an Erroneous Payment is made by the Collateral Agent, and shall not, affect the rights and obligations protections of the Borrower or any Administrative Agent under this Section 8.14 (other Loan Party under than the Loan Documents rights provided to the extent relating to principal, interest, premium, fees or similar payment obligations and Administrative Agent under Section 8.14(d) hereof) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating apply in all respects to the amount (and/or timing for payment) of the Obligations that would have been payable had Collateral Agent with respect to such Erroneous Payment not been made by the Administrative AgentPayment.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal , interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender or Issuing Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefore being acknowledged by the parties hereto), (iA) such Lender or Issuing Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or Issuing Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender or Issuing Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Lender shall cease to be a Lender or Issuing Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender or assigning Issuing Lender and (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 10.02 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid LenderBorrower’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lenderand each Guarantor’s Payment Rights Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan PartyGuarantor; provided that this Section 8.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower or any Guarantor relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party Guarantor for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.11 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, the Issuing Bank, any other holder(s) of the Obligations or any Person other Person(s) who has received funds on behalf of a Lender Lender, the Issuing Bank or Secured Party any other holder(s) of the Obligations (any such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other recipientrecipient(s), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after its receipt of any notice under immediately succeeding delivered pursuant to clause (b)) below) that any funds received by such Payment Recipient from the Administrative Agent Agent, or any of its Affiliates Affiliates, were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, other holder(s) of the Obligations or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall shall, at all times times, remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same same-day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from from, and including including, the date on which such Erroneous Payment (or portion thereof) was received by such Payment Recipient to to, and including, the date on which such amount is repaid to the Administrative Agent in same same-day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of delivered from the Administrative Agent to any Payment Recipient under pursuant to this clause (a) shall be conclusiveconclusive and binding, absent manifest error.
(b) Without limiting anything in the immediately preceding foregoing clause (a), each Lender or Secured PartyLender, or any Person who has received funds on behalf the Issuing Bank, each other holder(s) of a Lender or Secured Party, the Obligations party hereto and each other Payment Recipient party hereto hereby further agrees that that, if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (xI) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (yII) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (zIII) that such Lender or Secured PartyLender, Issuing Bank, other holder(s) of the Obligations or other such recipient, Payment Recipient(s) otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such casecase of the foregoing:
(i) it acknowledges and agrees that (A) in the any such case of the immediately preceding clauses (xb)(I) or (yb)(II), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) ), or (B) an error and mistake has been made (in the any such case of the immediately preceding clause (zb)(III)), an error has been made, in each casecase of the foregoing clauses (b)(i)(A) and (b)(i)(B), with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank, other holder(s) of the Obligations or Secured Party other Payment Recipient(s) shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all eventsany event, within one (1) Business Day of its obtaining knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(bclause (b).
(c) Each Lender or Secured Party Lender, the Issuing Bank, each other holder of the Obligations party hereto and each other Payment Recipient party hereto hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or Secured Party such other Payment Recipient(s) under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party Lender, the Issuing Bank, such other holder(s) of the Obligations and/or such other Payment Recipient(s) from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding foregoing clause (a), from any Lender Lender, the Issuing Bank, any other holder(s) of the Obligations or any other Payment Recipient(s) that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient other recipient who received such Erroneous Payment (or portion thereof) on its the respective behalfbehalf of any of the foregoing) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, at any time (with a copy to the Borrower), time: (i) such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, shall be deemed to have assigned (to the extent it has any such Loans) its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the such Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and such Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, is hereby (together with the Borrower) deemed to execute have executed and deliver delivered an Assignment and Assumption Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Agreement by reference pursuant to Debtdomain, Intralinks, SyndTrak, or a Platform substantially similar electronic transmission system as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and further, such Lender Lender, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be, shall deliver any Notes evidencing any such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), ; (ii) the Administrative Agent Agent, as the assignee Lender Lender, shall be deemed to acquire the Erroneous Payment Deficiency Assignment, ; (iii) upon such deemed acquisition, the Administrative Agent Agent, as the assignee Lender Lender, shall become a Lender, as applicable, hereunder with respect to the Issuing Bank or such Erroneous Payment Deficiency Assignment and other type of holder of the assigning Lender shall cease to be a LenderObligations, as applicablethe case may be, hereunder with respect to such Erroneous Payment Deficiency Assignment, and further, the assigning Lender, the Issuing Bank or such other holder(s) of the Obligations shall cease to be a Lender, the Issuing Bank or such other holder of the Obligations, as the case may be, hereunder with respect to such Erroneous Payment Deficiency Assignment, but excluding, for the avoidance of doubt, its such Person’s obligations under the indemnification provisions of this Agreement and its applicable Commitments Commitments, which shall survive as to such assigning Lender Lender, Issuing Bank or other holder(s) of the Obligations; and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and and, upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Lender, the Issuing Bank, the other applicable holder(s) of the Obligations or the other such applicable Payment Recipient(s), as the case may be, shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇, the Issuing Bank, such other holder(s) of the Obligations or such other Payment Recipient(s), as the case may be (and/or against any recipient that receives funds on its the respective behalfbehalf of any of the foregoing). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or the Issuing Bank, and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all of the rights and interests of the applicable Lender Lender, the Issuing Bank or Secured Party any other applicable holder(s) of the Obligations under the Loan Credit Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Erroneous Payment Rights under the Loan DocumentsSubrogation Rights”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The Each of the parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party, except, in each case, to the extent that such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Heritage Insurance Holdings, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.13(b)) that any funds (as set forth in such notice from Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds Same Day Funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds Same Day Funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effectapplicable Overnight Rate. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 9.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Credit Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient Payment Recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.13(a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 9.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with Borrowers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Lead Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and Borrowers shall be deemed to have waived any consents required under this Credit Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
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Erroneous Payments. (a) If the Administrative Agent or Sub-Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent or Sub-Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent or Sub-Administrative Agent) received by such Payment Recipient from the Administrative Agent, Sub-Administrative Agent or any of its itstheir Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent or Sub-Administrative Agent, as applicable, pending its return or repayment as contemplated below in this Section 9.16 8.10 and held in trust for the benefit of the Administrative Agent or Sub-Administrative Agent, as applicable, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent or Sub-Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent or Sub-Administrative Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent or Sub-Administrative Agent, as applicable) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent or Sub-Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or Sub-Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent or Sub-Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured PartyPayment Recipient, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent or Sub-Administrative Agent (or any of its itstheir respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent or Sub-Administrative Agent (or any of its itstheir respective Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent or Sub-Administrative Agent (or any of its itstheir respective Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent or Sub-Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; andand 109 Net-ZeroGevo - Credit Agreement
(ii) such Lender or Secured Party Payment Recipient shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent or Sub-Administrative Agent, as applicable, of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent or Sub-Administrative Agent pursuant to this Section 9.16(b8.10(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower failure to deliver a notice to the Administrative Agent or Sub-Administrative Agent pursuant to this Section 8.10(b) shall not have any Loan effect on a Payment Recipient’s obligations pursuant to Section 8.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender and Secured Party shall continue hereby agrees that, to be deemed the extent it fails to have performed its payment obligations with respect return any Erroneous Payment to the Administrative Agent or Sub-Administrative Agent, as applicable, pursuant to, and within the time periods required by, clauses (a) or (b) above, the Administrative Agent (or itsor Sub-Administrative Agent (or their respective Affiliates) is authorized at any amount that is actually paid time and from time to time thereafter, to the fullest extent permitted by law, to net, set off and apply any and all deposits of such Lender or Secured Party (general or special, time or demand, provisional or final) at any time held by or on behalf ofof the Administrative Agent or Sub-Administrative Agent (or its Affiliate, including by branches and agencies of the Administrative Agent or Sub-Administrative Agent, wherever located) for the Borrower account of such Lender or Secured Party against any such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentenceamounts.
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent or Sub-Administrative Agent, as applicable, for any reason, after demand therefor by the Administrative Agent or Sub-Administrative Agent, as applicable, in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent or Sub-Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent or Sub-Administrative Agent, as applicable, may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent or Sub-Administrative Agent, as applicable, in such instance)), and is hereby (together with Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform any electronic platform approved by the Administrative Agent or Sub-Administrative Agent, as applicable, as to which the Administrative Agent or Sub- Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the or Sub-Administrative Agent’s written request in accordance with , (but the terms failure of this Agreement, a replacement notesuch Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (iiB) the Administrative Agent or Sub-Administrative Agent, as applicable, as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent or Sub-Administrative Agent, as applicable, as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may andor Sub-Administrative Agent, as applicable, and Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent or Sub-Administrative Agent, as applicable, will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. 110 Net-ZeroGevo - Credit Agreement
(ii) Subject to Section 10.04 (but excluding, in all events, any assignment consent or approval requirements (whether from Borrower or otherwise)), the Administrative Agent or Sub-Administrative Agent, as applicable, may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan Loans (or portion thereof), and the Administrative Agent or Sub-Administrative Agent, as applicable, shall retain all other rights, remedies and claims against such Lender L▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (or portion thereof) Sub-Administrative Agent, as applicable, on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether Assignment (to the extent that any such Loans are then owned by the Administrative Agent may be equitably subrogatedor Sub-Administrative Agent, as applicable) and (y) may, in the sole discretion of the Administrative Agent shall or Sub-Administrative Agent, as applicable, be contractually subrogated reduced by any amount specified by the Administrative Agent or Sub-Administrative Agent in writing to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect from time to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicabletime.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent or Sub-Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent or Sub- Administrative Agent, as applicable, shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Financing Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Financing Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent or Sub-Administrative Agent, as applicable, under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.10(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent or Sub-Administrative Agent, as applicable,; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent or Sub-Administrative Agent, as applicable, from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent or Sub-Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.17(b) and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Abl Revolving Credit Agreement (Petco Health & Wellness Company, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Term Lender or Secured Party, or any Person who has received funds on behalf of a Term Lender or Secured Party (any such Term Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Term Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.10 and held in trust for the benefit of the Administrative Agent, and such Term Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Term Lender, Secured Party, Party or any Person who has received funds on behalf of a Term Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Facing Agent or Secured PartyCreditor, or any Person who has received funds on behalf of a Lender Lender, Facing Agent or Secured Party Creditor (any such Lender, Facing Agent, Secured Party Creditor or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Facing Agent, Secured Party Creditor or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Facing Agent or Secured Party Creditor shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate (in the case of amounts denominated in Dollars), the Overnight Euro Rate (in the case of amounts denominated in Euro) or the Overnight Sterling Rate (in the case of amounts denominated in Sterling), as applicable, and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Facing Agent, Secured Party, Creditor or any Person who has received funds on behalf of a Lender Lender, Facing Agent or Secured PartyCreditor (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Facing Agent or Secured PartyCreditor, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Facing Agent or Secured Party Creditor shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.14(b).. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.14(a) or on whether or not an Erroneous Payment has been made
(c) Each Lender Lender, Facing Agent or Secured Party Creditor hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Facing Agent or Secured Party Creditor under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Facing Agent or Secured Party from Creditor under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment and Assumption Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Agreement by reference pursuant to a Platform an electronic platform approved by the Administrative Agent as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower Company or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 12.8 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrowers or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender L▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Facing Agent or Secured Party Party, to the rights and interests of such Lender, Facing Agent or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Party; provided that this Section 11.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of such Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the such Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 11.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Facing Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (BALL Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the |US-DOCS\166979934.32|| case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Borrower Parent, Pledgor or any other Loan Credit Party; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Lender (any such Lender, Secured Party Issuing Bank or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.9 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured PartyIssuing Lender (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Issuing Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.9(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.9(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.9(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Issuing Lender hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from Issuing Lender under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Issuing Bank, to the rights and interests of such Lender or Issuing Bank, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Company; provided that this Section 8.9 shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Company relative to the amount (or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Document), the Company for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 8.9 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the applicable Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Class A-VF Administrative Agent (x) notifies a Lender or Purchaser, any other Secured Party, Party or any Person who has received funds on behalf of a Lender Purchaser or other Secured Party (any such LenderPurchaser, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Class A-VF Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Class A-VF Administrative Agent) received by such Payment Recipient from the Class A-VF Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Class A-VF Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 2.13 and held in trust for the benefit of the Class A-VF Administrative Agent, and such Lender Purchaser or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Class A-VF Administrative Agent may, in its sole discretion, specify in writing), return to the Class A-VF Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of from the Class A-VF Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Purchaser, Secured Party, Party or any Person who has received funds on behalf of a Lender Purchaser or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Class A-VF Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Class A-VF Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Class A-VF Administrative Agent (or any of its Affiliates), or (z) that such Lender Purchaser or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:: 34
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Class A-VF Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Purchaser or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Class A-VF Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Class A-VF Administrative Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the Class A-VF Administrative Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Purchaser or Secured Party hereby authorizes the Class A-VF Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser or Secured Party under any Loan Transaction Document, or otherwise payable or distributable by the Class A-VF Administrative Agent to such Lender Purchaser or Secured Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Class A-VF Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Class A-VF Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser or Secured Party Party, to the rights and interests of such Purchaser or Secured Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower Issuer; provided that this Section 2.13 shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Secured Obligations of the Issuer relative to the amount (and/or timing for payment) of the Secured Obligations that would have been payable had such Erroneous Payment not been made by the Class A-VF Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Class A-VF Administrative Agent from from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Transaction Document), the Issuer for the purpose of making such Erroneous Payment.a payment on the Secured Obligations. 35
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Class A-VF Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 2.13 shall survive the resignation or replacement of the Class A-VF Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser, the termination redemption of all of the Commitments Notes in whole and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Purchase Agreement (Vista Credit Strategic Lending Corp.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Bank, Swing Line Bank or Secured PartyIssuing Lender, or any Person who has received funds on behalf of a Bank, Swing Line Bank or Issuing Lender or Secured Party (any such LenderBank, Secured Party Swing Line Bank, Issuing Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderBank, Secured Party Swing Line Bank, Issuing Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment 91 or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.12 and held in trust for the benefit of the Administrative Agent, and such Bank, Swing Line Bank or Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, hereby further Payment Recipient agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Payment Recipient shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Bank, Swing Line Bank or Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Bank, Swing Line Bank or Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Bank, Swing Line Bank or Issuing Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Bank that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Bank at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption a Commitment Transfer Supplement (or, to the extent applicable, an agreement incorporating an Assignment and Assumption a Commitment Transfer Supplement by reference pursuant to a Platform an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender Bank shall deliver any Notes evidencing such Loans to the Borrower Company or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender Bank shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender Bank shall become a LenderBank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Bank shall cease to be a LenderBank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Bank, (ivD) the Administrative Agent may and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender Bank and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Erroneous Payments. (a) If the Administrative Facility Agent (x) notifies a Lender or Secured Party, Pass-Through Lender or any Person who has received funds on behalf of a Lender or Secured Party Pass-Through Lender (any such Lender, Secured Party Lender or Pass-Through Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Facility Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Facility Agent) received by such Payment Recipient from the Administrative Facility Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or Pass-Through Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Facility Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Facility Agent pending its return or repayment as contemplated below in this Section 9.16 Section 7.14 and held in trust for the benefit of the Administrative Facility Agent, and such Lender or Secured Party Pass-Through Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Facility Agent may, in its sole discretion, specify in writing), return to the Administrative Facility Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Facility Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, Pass-Through Lender or any Person who has received funds on behalf of a Lender or Secured PartyPass-Through Lender (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Facility Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Facility Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Facility Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, Pass-Through Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Facility Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Pass-Through Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Facility Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Facility Agent pursuant to this Section 9.16(b7.14(b). For the avoidance of doubt, the failure to deliver a notice to the Facility Agent pursuant to this Section 7.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Pass-Through Lender hereby authorizes the Administrative Facility Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Pass-Through Lender under any Loan Document, or otherwise payable or distributable by the Administrative Facility Agent to such Lender or Secured Party from Pass-Through Lender under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Facility Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Facility Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Facility Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Pass-Through Lender, to the rights and interests of such Lender or Pass-Through Lender, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations (as defined in the Intercreditor Agreement) owed by the Borrower; provided that this Section 7.14 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (or any other Loan Partytiming for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Facility Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Facility Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) To the extent permitted by applicable lawApplicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Facility Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 7.14 shall survive the resignation or replacement of the Administrative Facility Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Pass-Through Lender, the termination of the Commitments and/or Commitment or “Commitment” (as defined in the Pass-Through Loan Agreement) or the repayment, satisfaction or discharge of all Obligations or “Obligations” (as defined in the Pass-Through Loan Agreement) (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Purchaser, Group Agent or Secured Party, or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured Party (any such LenderPurchaser, Group Agent, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Group Agent, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative Agent, and such Lender Purchaser, Group Agent or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Purchaser, Group Agent, Secured Party, Party or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Purchaser, Group Agent or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Purchaser, Group Agent or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.10(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Purchaser, Group Agent or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser, Group Agent or Secured Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent to such Lender Purchaser, Group Agent or Secured Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Purchaser at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender Purchaser shall be deemed to have assigned its Loans Capital (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Capital (but not its Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Sellers) deemed to execute and deliver an Assignment and Assumption Acceptance Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance Agreement by reference pursuant to a Platform as to which the Administrative Agent and such parties are participantsreference) with respect to such Erroneous Payment Deficiency Assignment, Assignment and such Lender Purchaser shall deliver any Notes notes evidencing such Loans Investments to the Borrower applicable Seller or the Administrative Agent (for prompt return but the failure of such Person to deliver any such notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender Purchaser shall become a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Purchaser, (ivD) the Administrative Agent may and the Sellers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans Capital subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Purchaser and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 14.03 (but excluding, in all events, any assignment consent or approval requirements (whether from any Seller or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans Investment acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Purchaser shall be reduced by the net proceeds of the sale of such Loan Investment (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender Purchaser (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Purchaser (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Investment acquired from such Purchaser pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Investment is then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Purchaser from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser, Group Agent or Secured Party Party, to the rights and interests of such Purchaser, Group Agent or Secured Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Sellers’ Seller Obligations under the Loan Documents”). If any amount Transaction Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Seller Obligations in respect of Capital that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Seller Obligations owed by the Borrower any Seller or any other Loan Dayforce Party; provided that this Section 11.10 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Seller Obligations relative to the amount (and/or timing for payment) of the Seller Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Seller for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of of, the Administrative Agent, any transfer of rights or obligations by, or the replacement of, of a LenderPurchaser or Group Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Seller Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.13(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effectRate. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 9.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Credit Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.13(a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 9.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and the Borrower shall be deemed to have waived any consents required under this Credit Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CareCloud, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two Business Day Days of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Financing Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceFinancing Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a the Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt effectiveness of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereofforegoing assignment), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.,
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Purchaser, Group Agent or Secured Party, or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured Party (any such LenderPurchaser, Group Agent, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Group Agent, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted transferred or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or 112 repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative Agent, and such Lender Purchaser, Group Agent or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Purchaser, Group Agent, Secured Party, Party or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Purchaser, Group Agent or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(ia) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(iib) such Lender Purchaser, Group Agent or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.10(b).. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.10(a) or on whether or not an Erroneous Payment has been made. 113
(c) Each Lender Purchaser, Group Agent or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser, Group Agent or Secured Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent to such Lender Purchaser, Group Agent or Secured Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Purchaser at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender Purchaser shall be deemed to have assigned its Loans Capital (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Capital (but not its Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Sellers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) Acceptance Agreement with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (iiB) the Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender Purchaser shall become a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Purchaser, (ivD) the Administrative Agent may and the Sellers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans Capital subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Purchaser and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 14.03 (but excluding, in all events, any assignment consent or approval requirements (whether from any Seller or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans Investment acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Purchaser shall be reduced by the net proceeds of the sale of such Loan Investment (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender Purchaser (and/or against any recipient that receives funds on 114 its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Purchaser (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Investment acquired from such Purchaser pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Investment is then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Purchaser from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser, Group Agent or Secured Party Party, to the rights and interests of such Purchaser, Group Agent or Secured Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Sellers’ Seller Obligations under the Loan Documents”). If any amount Transaction Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Seller Obligations in respect of Capital that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Seller Obligations owed by the Borrower Seller; provided that this Section 11.10 shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Seller Obligations relative to the amount (and/or timing for payment) of the Seller Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Seller for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of of, the Administrative Agent, any transfer of rights or obligations by, or the replacement of, of a LenderPurchaser or Group Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Seller Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.. 115
Appears in 1 contract
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or US-DOCS\165060996.55168397633.10 mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of US-DOCS\165060996.55168397633.10 the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under this Agreement and any other Loan Document, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement or any sourceother Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Initial Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Initial Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable lawLaw, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . US-DOCS\165060996.55168397633.10 Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (NSCALE LTD)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.13(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 9.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Credit Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.returned under Section 9.13(a). - 108 -
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 9.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and the Borrower shall be deemed to have waived any consents required under this Credit Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Ooma Inc)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.13(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other - 128 - Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.13(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (athe provisions of Section 9.13(a), each Lender or Secured Party, or any Person who has received funds on behalf Payment Recipient (and each of a Lender or Secured Party, their respective successors and assigns) hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Credit Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (z), an error and mistake has been made (in the case of the immediately preceding clause (z))made, in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any - 129 - payment of principal, interest, fees, or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.13(a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 9.13(a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Credit Agreement and its applicable Commitments which shall survive as to such assigning Lender Lender, (D) the Administrative Agent and the Borrower shall be deemed to have waived any consents required under this Credit Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Credit Agreement.
(i) The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest or other distribution in respect of principal and interest, except to the extent that received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment, Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may in the sole discretion of the Administrative Agent be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any - 130 - reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party Party, to the rights and interests of such Lender, L/C Issuer or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.13 shall not be interpreted to increase (or accelerate the due date for) the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawApplicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.13 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document).
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.11(b).
(c) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or failure to deliver a notice to the Administrative Agent pursuant to this Section 11.11(b) shall not have any Loan Party shall continue effect on a Payment Recipient’s obligations pursuant to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (Section 11.11(a) or on behalf of) the Borrower whether or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that not an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicablemade.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Fourth Amendment and Lender Joinder Agreement (SYNAPTICS Inc)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Partyany indemnified party hereunder, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party any indemnified party hereunder (any such Lender▇▇▇▇▇▇, Secured Party Issuing Bank, indemnified party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank, indemnified party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party indemnified party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyLender, Issuing Bank, indemnified party hereunder or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Partyindemnified party hereunder (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Partyindemnified party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party indemnified party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party indemnified party hereunder hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party indemnified party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from indemnified party under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such behalf)(such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an Electronic System as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.27 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Parent or the Borrower; provided that this Section 9.27 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.27 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). 121 |US-DOCS\169633672.18|| For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) and any unreimbursed and documented out-of-pocket costs or expenses paid or incurred by such Agent under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or Section 9.26 on behalf of) the Borrower of such Lender or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentenceSecured Party.
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Borrower Parent, Pledgor or any other Loan Credit Party; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bSection 9.14(b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.together
(b) Without limiting immediately preceding clause (aSection 9.14(a), each Lender or Lender, L/C Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
: (i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue has demanded to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencereturned under Section 9.14(a).
(d) In [Reserved].
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, rights and solely with respect to the amount interests of such Erroneous Payment that isLender, comprised of funds received by L/C Issuer or Secured Party, as the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.case may be) under the
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 9.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.. ARTICLE X MISCELLANEOUS 10.01
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether Assignment (to the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (extent that any such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid Loans are then owned by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment may, in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement sole discretion of the Administrative Agent, be reduced by any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made specified by the Administrative AgentAgent in writing to the applicable Lender from time to time.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Purchaser, Group Agent or Secured Party, or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured Party (any such LenderPurchaser, Group Agent, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Group Agent, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted transferred or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative Agent, and such Lender Purchaser, Group Agent or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Purchaser, Group Agent, Secured Party, Party or any Person who has received funds on behalf of a Lender Purchaser, Group Agent or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Purchaser, Group Agent or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(ia) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(iib) such Lender Purchaser, Group Agent or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.10(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Purchaser, Group Agent or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser, Group Agent or Secured Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent to such Lender Purchaser, Group Agent or Secured Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Purchaser at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender Purchaser shall be deemed to have assigned its Loans Capital (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Capital (but not its Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Sellers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) Acceptance Agreement with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (iiB) the Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender Purchaser shall become a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a LenderPurchaser, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Purchaser, (ivD) the Administrative Agent may and the Sellers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans Capital subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Purchaser and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 14.03 (but excluding, in all events, any assignment consent or approval requirements (whether from any Seller or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans Investment acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Purchaser shall be reduced by the net proceeds of the sale of such Loan Investment (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender Purchaser (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Purchaser (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Investment acquired from such Purchaser pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Investment is then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Purchaser from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser, Group Agent or Secured Party Party, to the rights and interests of such Purchaser, Group Agent or Secured Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights Sellers’ Seller Obligations under the Loan Documents”). If any amount Transaction Documents in respect of the Overpaid Lender’s Erroneous Payment Subrogation Rights under the Loan Documents shall not be duplicative of such Seller Obligations in respect of Capital that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Seller Obligations owed by the Borrower Seller; provided that this Section 11.10 shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Seller Obligations relative to the amount (and/or timing for payment) of the Seller Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Seller for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of of, the Administrative Agent, any transfer of rights or obligations by, or the replacement of, of a LenderPurchaser or Group Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Seller Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Receivables Purchase Agreement (OUTFRONT Media Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 9.4(b) (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.15 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Term Lender or Secured Party, or any Person who has received funds on behalf of a Term Lender or Secured Party (any such Term Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Term Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.10 and held in trust for the benefit of the Administrative Agent, and such Term Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Term Lender, Secured Party, Party or any Person who has received funds on behalf of a Term Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Term Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Term Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this (b) shall not have any effect on a Payment Recipient’s obligations pursuant to (a) or on whether or not an Erroneous Payment has been made.
(c) Each Term Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Term Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Term Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Term Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Term Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each Erroneous Payment Return Deficiency such amount and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.10 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) a payment on the Obligations. To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(ge) Each party’s obligations, agreements and waivers under this Section 9.16 8.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, Term Lender the termination of the Term Loan Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured PartyLender, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Lender (any such Lender, Secured Party Issuing Bank or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.9 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured PartyIssuing Lender (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Issuing Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.9(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.9(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.9(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Issuing Lender hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from Issuing Lender under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Issuing Bank, to the rights and interests of such Lender or Issuing Bank, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment Company; provided that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and 8.9 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating Company relative to the amount (and/or or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Company for the purpose of a payment on the Obligations.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:.
(i) i. it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) . such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform electronic platforms as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 9.04 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, the “Overpaid Lender’s Payment Rights under provided that the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, to the provisions in this Section 9.16 are not intended toextent an Erroneous Payment is made by the Collateral Agent, and shall not, affect the rights and obligations protections of the Borrower or any Administrative Agent under this Section 8.14 (other Loan Party under than the Loan Documents rights provided to the extent relating to principal, interest, premium, fees or similar payment obligations and Administrative Agent under Section 8.14(d) hereof) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating apply in all respects to the amount (and/or timing for payment) of the Obligations that would have been payable had Collateral Agent with respect to such Erroneous Payment not been made by the Administrative AgentPayment.
Appears in 1 contract
Sources: First Lien Credit Agreement (Rackspace Technology, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Parent, the Borrower or any other Loan PartyObligor; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 9.26 shall survive the resignation or replacement of the Administrative AgentAgents, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction satisfaction, or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant demanded to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party returned under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”Section 12.15(a). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Fourth Amendment to Credit Agreement (Infinity Natural Resources, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, Payment Recipient or any Person who has received funds on behalf of a Lender or Secured PartyPayment Recipient (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured PartyPayment Recipient, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9/14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instanceinterest), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform approved as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a LenderLender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a LenderLender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 12.16 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Letter of Credit Issuer, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Letter of Credit Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.16(b).
(iii) For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.16(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrowers) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes promissory notes evidencing such Loans to the Borrower Borrowers or the Administrative Agent (for prompt return but the failure of such Person to deliver any such promissory notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Erroneous Payments. (a) If the Administrative Agent Administrator (x) notifies a Lender Purchaser or Secured an Indemnified Party, or any Person who has received funds on behalf of a Lender Purchaser or Secured an Indemnified Party (any such LenderPurchaser, Secured Indemnified Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent Administrator has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrator) received by such Payment Recipient from the Administrative Agent Administrator or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPurchaser, Secured Indemnified Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrator may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by within five (or on behalf of5) the Borrower to the Administrative Agent pursuant to the terms Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent Administrator pending its return or repayment as contemplated below in this Section 9.16 11.10 and held in trust for the benefit of the Administrative AgentAdministrator, and such Lender Purchaser or Secured Indemnified Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent Administrator may, in its sole discretion, specify in writing), return to the Administrative Agent Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative AgentAdministrator) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent Administrator in same day funds at the greater of the Federal Funds sum of (i) the Prime Rate plus (ii) 1.0% and a rate determined by the Administrative Agent Administrator in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent Administrator to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured Party, or Purchaser and Indemnified Party and any Person who has received funds on behalf of a Lender Purchaser or Secured PartyIndemnified Party (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent Administrator (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent Administrator (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent Administrator (or any of its Affiliates), or (z) that such Lender Purchaser or Secured Indemnified Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent Administrator to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Purchaser or Secured Indemnified Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent Administrator of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent Administrator pursuant to this Section 9.16(bclause (ii).
(c) Each Lender or Secured Purchaser and Indemnified Party hereby authorizes the Administrative Agent Administrator to withhold, set off, net and apply any and all amounts at any time owing to such Lender Purchaser or Secured Indemnified Party under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent Administrator to such Lender Purchaser or Secured Indemnified Party from under any sourceTransaction Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrator has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the Administrator may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amountreason, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender Administrator shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Purchaser or Secured Party Indemnified Party, to the rights and interests of such Purchaser or Indemnified Party, as the case may be) under the Loan Transaction Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Recourse Obligations owed by the Borrower Seller or any other Loan Seller Party, exceptPurchaser, in each caseAdministrator, Purchaser Agent or Funding Source; provided that this Section 11.10 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Recourse Obligations of the Seller relative to the amount (and/or timing for payment) of the Recourse Obligations that would have been payable had such Erroneous Payment not been made by the Administrator; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from Administrator from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Transaction Document), the Seller for the purpose of making such Erroneous Paymenta payment on the Recourse Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent Administrator for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of the Administrative AgentAdministrator, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser or Indemnified Party, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Recourse Obligations (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Amerisourcebergen Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses clause (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the 105 immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.11(b).
(c) For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.11(a) or on whether or not an Erroneous Payment has been made.
(d) Each Lender, Issuing Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(de) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogatedreason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to each Erroneous Payment Return Deficiency such amount and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Partythe Guarantor; provided that this Section 8.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 8.11 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or 106 obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Sun Country Airlines Holdings, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Facility Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Facility Party (any such Lender, Issuing Bank, Secured Facility Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 10.24 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Facility Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Facility Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Facility Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.24(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.24(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.24(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Facility Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Facility Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Facility Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower Company or the Administrative Agent (for prompt return but the failure of such Person to deliver any such Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (ivD) the Administrative Agent may and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 11.4 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except to the extent that or other distribution in respect of principal and interest, received by the Administrative Agent has sold a Loan (on or portion thereof) with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, and in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable Lender case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Bank or Secured Party Facility Party, to the rights and interests of such Lender, Issuing Bank or Secured Facility Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) (such rights, provided that the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Borrowers’ and Guarantors’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
Deficiency Assignment) and (ey) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower Company or any other Loan PartyBorrower or Guarantor; provided that this Section 10.24 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Secured Obligations of the Company relative to the amount (and/or timing for payment) of the Secured Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Company for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 10.24 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Loan Agreement (Moog Inc.)
Erroneous Payments. (ai) If Each Lender, Issuing Bank or Secured Party hereby agrees that if the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (bii)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)Lender, without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two one Business Days Day thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (ai) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (ai), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, repayment (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Lender, Issuing Bank, Secured Party, Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(iA) it acknowledges and agrees that (AI) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (BII) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
and (iiB) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b10.26(ii) and, upon demand from the Administrative Agent, such Lender, Issuing Bank or Secured Party shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.26(ii) shall not have any effect on a Payment Recipient’s obligations pursuant to this Section 10.26(i) or on whether or not an Erroneous Payment has been made.
(ciii) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentencei).
(div) In The Borrower and each other Loan Party hereby agrees that (x) in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable such Lender or Secured Party under the Loan Documents with respect to each such amount and (y) an Erroneous Payment Return Deficiency (such rightsshall not pay, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If prepay, repay, discharge or otherwise satisfy any amount Obligations owed by any of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Party.
(v) The Borrower or and each other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree hereby agrees that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(fvi) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.or
(gvii) Each party’s obligations, agreements and waivers under this Section 9.16 10.26 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document. Section 10.27. [Reserved].
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Progyny, Inc.)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole sole, reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 8.02 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Issuing Bank, Secured Party, Party or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender Lender, Issuing Bank or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender Lender, Issuing Bank or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.02(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.02(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.02(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender Lender, Issuing Bank or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Lender Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), without limiting any of the Borrower’s or any other Loan Party’s rights with respect to any payment made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms of the Loan Documents, such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative AgentAgent in its sole discretion) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) . Without limiting the immediately preceding clause (a)paragraph, each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, ) in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf Payment Recipient to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b9.19(a).
(cb) Each Lender or Secured Party hereby authorizes the Administrative Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(dc) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower)time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and Lender, (iv) the Administrative Agent may and the Borrower shall each be deemed to have waived any consents required under this Agreement solely with respect to any such Erroneous Payments Deficiency Assignment (and not to any other assignment, transfer or participation), and (v) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but discretion and subject to, and to the Borrower’s consent rights as set forth in accordance with, the provisions of Section 10.07(b)10.07, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid LenderErroneous Payment Subrogation Rights”) (provided that the Borrower’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such under an Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicableDeficiency Assignment).
(ed) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party Party, or realized as proceeds of the Collateral and applied, for the purpose of making such Erroneous Paymenta payment of any Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(gf) Each party’s obligations, agreements and waivers under this Section 9.16 9.19 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(hg) For Notwithstanding anything herein or in any other Loan Document, the Borrower and the other Loan Parties (and their respective Subsidiaries) shall have no liabilities or obligations directly or indirectly arising out of this Section 9.19 in respect of any Erroneous Payment (other than having consented to the assignment referenced in Section 9.19(c) above); provided, that the foregoing shall not limit the terms of Sections 10.04 and 10.05 (but for the avoidance of doubt, the provisions in this Section 9.16 are not intended toit is understood and agreed that, and shall notif a Loan Party has paid principal, affect the rights and obligations of the Borrower interest or any other amounts owed to a Secured Party, Section 10.04 and Section 10.05 shall not require any such Loan Party under the Loan Documents to the extent relating to principalpay additional amounts that are, interestby way of Section 10.04 and Section 10.05, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date foreffectively duplicative of such previously paid amounts), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Irobot Corp)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (an “Erroneous Payment Demand”) (provided, that, without limiting any of the Borrower’s other rights or any other Loan Party’s rights with respect to any payment made by remedies (whether at law or on behalf of) the Borrower to in equity), the Administrative Agent pursuant to the terms may not make any Erroneous Payment Demand unless such demand is made within ten (10) Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 9.26 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Lender, Secured Party, Party or any Person who has received funds on behalf of a Lender or Secured PartyParty (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative applicable Agent pursuant to this Section 9.16(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the applicable Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Administrative applicable Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Documentthis Agreement, or otherwise payable or distributable by the Administrative applicable Agent to such Lender or Secured Party from under this Agreement with respect to any sourcepayment of principal, interest, fees or other amounts, against any amount due that the applicable Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(d) In The parties hereto agree that (x) irrespective of whether the applicable Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) (and/or from for any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time (with a copy to the Borrower), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Classreason, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Payment Recipient (and, in the applicable case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to each such amount (the “Erroneous Payment Return Deficiency Subrogation Rights”) and (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf ofy) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge discharge, or otherwise satisfy any Obligations owed by the Parent or, the Borrower or any other Loan PartyObligor; provided that this Section 9.26 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the applicable Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative applicable Agent from from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(fe) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative applicable Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Erroneous Payments. (a) If the Administrative Senior Facility Agent (x) notifies a Lender or Secured PartyLender, Issuing Bank or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank, or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Senior Facility Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Senior Facility Agent) received by such Payment Recipient from the Administrative Senior Facility Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) (provided, that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Senior Facility Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 5 Business Days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Administrative Senior Facility Agent pending its return or repayment as contemplated below in this Section 9.16 10.19 and held in trust for the benefit of the Administrative Senior Facility Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Senior Facility Agent may, in its sole discretion, specify in writing), return to the Administrative Senior Facility Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Senior Facility Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Senior Facility Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Senior Facility Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Senior Facility Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or Secured PartyLender, Issuing Bank or any Person who has received funds on behalf of a Lender or Secured PartyIssuing Bank (and each of their respective successors and assigns), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Senior Facility Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Senior Facility Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Senior Facility Agent (or any of its Affiliates), or (z) that such Lender or Secured PartyLender, Issuing Bank or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, then in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Senior Facility Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Issuing Bank shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two Business Day Days of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Senior Facility Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Senior Facility Agent pursuant to this Section 9.16(b)10.19. For the avoidance of doubt, the failure to deliver a notice to the Senior Facility Agent pursuant to this Section 10.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Issuing Bank hereby authorizes the Administrative Senior Facility Agent to withhold, set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under any Loan Financing Document, or otherwise payable or distributable by the Administrative Senior Facility Agent to such Lender or Secured Party from Issuing Bank under any sourceFinancing Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Senior Facility Agent has demanded to the Administrative Agent be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Senior Facility Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Senior Facility Agent’s notice to such Lender at any time time, then effective immediately (with a copy to the Borrowerconsideration therefor being acknowledged by the parties hereto), (iA) such Lender shall be deemed to have assigned its Loans (but not its Revolving Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Senior Facility Agent may specify) (such assignment of the Loans (but not Revolving Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Senior Facility Agent in such instance)), and is hereby (together with Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a the Platform as to which the Administrative Senior Facility Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Promissory Notes evidencing such Loans to the Borrower or the Administrative Senior Facility Agent (for prompt return but the failure of such Person to deliver any such Promissory Notes shall not affect the Borrower in exchange for, at effectiveness of the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement noteforegoing assignment), (iiB) the Administrative Senior Facility Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment, (iiiC) upon such deemed acquisition, the Administrative Senior Facility Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Revolving Commitments which shall survive as to such assigning Lender Lender, (D) the Senior Facility Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (ivE) the Administrative Senior Facility Agent may will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Revolving Commitments of any Lender and such Revolving Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 10.02 (but excluding, in all events, any assignment consent or approval requirements (whether from Borrower or otherwise)), the Senior Facility Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Senior Facility Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees thatan Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, except or other distribution in respect of principal and interest, received by the Senior Facility Agent on or with respect to the extent that the Administrative Agent has sold a Loan (or portion thereof) any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency AssignmentAssignment (to the extent that any such Loans are then owned by the Senior Facility Agent) and (y) may, and irrespective in the sole discretion of whether the Administrative Senior Facility Agent, be reduced by any amount specified by the Senior Facility Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated in writing to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect from time to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicabletime.
(e) The parties hereto agree that (x) irrespective of whether the Senior Facility Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Senior Facility Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Issuing Bank, to the rights and interests of such Lender or Issuing Bank, as the case may be) under the Financing Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that ▇▇▇▇▇▇▇▇’s Obligations under the Financing Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Senior Facility Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by ▇▇▇▇▇▇▇▇; provided that this Section 10.19(e) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of Borrower or any other Loan Partyrelative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Senior Facility Agent; provided, exceptfurther, in each casethat for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Senior Facility Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Senior Facility Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) . Each party’s obligations, agreements and waivers under this Section 9.16 10.19 shall survive the resignation or replacement of the Administrative Senior Facility Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Revolving Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) For the avoidance of doubt, the provisions in this Section 9.16 are not intended to, and shall not, affect the rights and obligations of the Borrower or any other Loan Party under the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent.
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Sources: Senior Revolving Credit and Guaranty Agreement (Sabine Pass Liquefaction, LLC)
Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender or Secured Party, Purchaser or any Person who has received funds on behalf of a Lender or Secured Party Purchaser (any such Lender, Secured Party Purchaser or other recipientPerson, a “Payment RecipientPurchaser Party”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient Purchaser Party from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Purchaser Party (whether or not known to such Lender, Secured Party Purchaser or other Payment Recipient Purchaser Party on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof)) in writing (provided that, without limiting any of other rights or remedies (whether at law or in equity), the Borrower’s or Administrative Agent may not make any other Loan Party’s rights such demand under this clause (a) with respect to any payment an Erroneous Payment unless such demand is made by (or on behalf of) the Borrower to the Administrative Agent pursuant to the terms within 30 days of the Loan Documentsdate of receipt of such Erroneous Payment by the applicable Payment Purchaser Party), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Purchaser Party and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Purchaser shall (or, with respect to any Payment Recipient Purchaser Party who received such funds on its behalf, shall cause such Payment Recipient Purchaser Party to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing)thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same same-day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient Purchaser Party to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient Purchaser Party under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party, Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or Secured PartyPurchaser, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then, ) in each such case:
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender or Secured Party Purchaser shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b11.10(b).
(c) Each Lender or Secured Party Purchaser hereby authorizes the Administrative Agent to withhold, set set-off, net and apply any and all amounts at any time owing to such Lender or Secured Party Purchaser under any Loan Transaction Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party Purchaser from any source, against any amount due to the Administrative Agent under immediately preceding clause (aSection 11.10(a) or under the indemnification provisions of this Agreement. For the avoidance of doubt, the Borrower or any Loan Party shall continue to be deemed to have performed its payment obligations with respect to any amount that is actually paid by (or on behalf of) the Borrower or such Loan Party and is subject to such withholding, set off, netting or application pursuant to the preceding sentence.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 11.10(a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient Purchaser Party who received such Erroneous Payment (or portion thereof) on its respective behalf) behalf (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender Purchaser at any time (with a copy to the Borrower)time, (i) such Lender Purchaser shall be deemed to have assigned its Loans Investments, as applicable (but not its Commitmentscorresponding Commitment) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans Investments (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the any assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Seller) deemed to execute and deliver an Assignment assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and such parties are participants) assumption documentation with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (for prompt return to the Borrower in exchange for, at the Administrative Agent’s written request in accordance with the terms of this Agreement, a replacement note), (ii) the Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender Purchaser shall become a Lender, as applicable, Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a Lender, as applicable, Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments Commitment(s) which shall survive as to such assigning Lender Purchaser and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans Investments subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, but subject to, and in accordance with, the provisions of Section 10.07(b), sell any Loans Investments acquired pursuant to an Erroneous Payment Deficiency Assignment to an Eligible Assignee at par subject to the terms and conditions with respect to assignment of Investments set forth herein and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender Purchaser shall be reduced by the net proceeds of the sale of such Loan Investment (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender ▇▇▇▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments Commitment(s) of any Lender Purchaser and such Commitments Commitment(s) shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (such rights, the “Overpaid Lender’s Payment Rights under the Loan Documents”). If any amount of the Overpaid Lender’s Payment Rights under the Loan Documents to which the Administrative Agent has been subrogated is paid by (or on behalf of) the Borrower or any other Loan Party to the Administrative Agent, then the Lender or Secured Party who received such Erroneous Payment shall be deemed to have received an equal amount from the Borrower or other Loan Party under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Aggregate Unpaids owed by the Borrower Seller or any other Loan Seller Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower Seller or any other Loan Seller Party for the purpose of making such Erroneous Paymentreducing the Aggregate Unpaids.
(f) To the extent permitted by applicable lawApplicable Law, no Payment Recipient Purchaser Party shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to (x) any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine, or (y) upon any payment in accordance with the last sentence of clause (d) above, the deemed cessation of the corresponding rights under the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements, as applicable.
(g) Each party’s obligations, agreements and waivers under this Section 9.16 11.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Aggregate Unpaids (or any portion thereof) under any Loan Transaction Document.
(h) For the avoidance of doubt, the provisions Nothing referenced in this Section 9.16 are not intended to11.10, including the payment of an Erroneous Payment and shall not, affect the rights and obligations of the Borrower or any other Loan Party parties related thereto under this Section 11.10, shall trigger the Loan Documents to the extent relating to principal, interest, premium, fees or similar payment Seller Parties’ indemnification obligations and shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Loan Party relating to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agenthereunder including under Article XII.
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