Common use of Set-Off; Sharing of Set-offs Clause in Contracts

Set-Off; Sharing of Set-offs. (a) Any deposits or other sums at any time credited by or due from any of the Lenders or any Participant to the Borrower and any securities or other property of the Borrower in the possession of a Participant may at all times be held and treated as collateral security for the payment of the Obligations. Regardless of the adequacy of any collateral, any such deposits or other sums may be applied to or set off against Obligations at any time if the Borrower is primarily liable thereon, or at or after the maturity thereof if the Borrower is secondarily liable thereon. The Borrower irrevocably invites each financing institution which may consider becoming a Participant to rely on the provisions of this Section 9.04 as making the Participant a creditor of the Borrower and agrees that its becoming a Participant shall constitute an acceptance of the offer hereby made. Any and all rights to require the Agent or any Lender to exercise its rights or remedies with respect to any other collateral which secures the Loans, prior to exercising its right of setoff with respect to such deposits, credits or other property of the Borrower, are hereby knowingly, voluntarily and irrevocably waived; (b) Each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, receive payment of a proportion of the aggregate amount due with respect to any Loan or Reimbursement Obligation owed to it which is greater than the proportion received by any other Lender in respect of the aggregate amount due with respect to any Loan or Reimbursement Obligation owed to such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the Loans and Reimbursement Obligations owed to the other Lenders, and such other adjustments shall be made, as may be required so that all such payments with respect to the Loans and Reimbursement Obligations owed to the Lenders shall be shared by the Lenders pro rata; provided that (i) nothing in this Section shall impair the right of any Lender to exercise any right of setoff or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder to the extent that any amount resulting from such setoff exceeds the then outstanding aggregate amount of Loans and Reimbursement Obligations and other obligations of the Borrower hereunder and under any other Financing Document, and (ii) nothing in any Financing Documents shall require any Lender to share any payments and distributions received by such Lender if such payments and distributions were made in respect of any obligations not constituting Loans or Reimbursement Obligations. The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan or Reimbursement Obligation, whether or not acquired pursuant to the foregoing arrangements and regardless of the adequacy of any collateral, may exercise rights of setoff or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.

Set-Off; Sharing of Set-offs. (a) Any deposits or other sums at any time credited by or due from any of the Lenders or any Participant to the Borrower and any securities or other property of the Borrower in the possession of a Participant may at all times be held and treated as collateral security for the payment of the Obligations. Regardless of the adequacy of any collateral, any such deposits or other sums may be applied to or set off against Obligations at any time if the Borrower is primarily liable thereon, or at or after the maturity thereof if the Borrower is secondarily liable thereon. The Borrower irrevocably invites each financing institution which may consider becoming a Participant to rely on the provisions of this Section 9.04 as making the Participant a creditor of the Borrower and agrees that its becoming a Participant shall constitute an acceptance of the offer hereby made. Any and all rights to require the Agent or any Lender to exercise its rights or remedies with respect to any other collateral which secures the Loans, prior to exercising its right of setoff with respect to such deposits, credits or other property of the Borrower, are hereby knowingly, voluntarily and irrevocably waived; (b) Each Lender Bank agrees that if it shall, by exercising any right of setoff set-off or counterclaim or otherwise, receive (i) payment of a proportion of the aggregate amount of principal and interest due with respect to any Loan or Reimbursement Obligation owed to Note held by it which is greater than the proportion received by any other Lender Bank in respect of the aggregate amount of principal and interest due with respect to any Loan or Reimbursement Obligation owed to Note held by such other LenderBank or (ii) payment of a proportion of its participation in the LC Liabilities which is greater that the proportion received by any other Bank in respect of its participation in the LC Liabilities, the Lender Bank receiving such proportionately greater payment shall purchase such participations in the Loans and Reimbursement Obligations owed to Notes or the LC Liabilities (as the case may be) held by the other LendersBanks, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans and Reimbursement Obligations owed to Notes held by the Lenders Banks shall be shared by the Lenders Banks pro ratarata and all such payments with respect to the LC Liabilities shall be shared pro rata by the Banks participating therein; provided that (i) nothing in this Section shall impair the right of any Lender Bank to exercise any right of setoff set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder to under the extent that any amount resulting from such setoff exceeds Notes and the then outstanding aggregate amount of Loans and Reimbursement Obligations and other obligations of the Borrower hereunder and under any other Financing Document, and (ii) nothing in any Financing Documents shall require any Lender to share any payments and distributions received by such Lender if such payments and distributions were made in respect of any obligations not constituting Loans or Reimbursement ObligationsLC Liabilities. The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan Note or Reimbursement Obligationthe LC Liabilities, whether or not acquired pursuant to the foregoing arrangements and regardless of the adequacy of any collateralarrangements, may exercise rights of setoff set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.

Set-Off; Sharing of Set-offs. (a) Any deposits or other sums at any time credited by or due from any of the Lenders or any Participant to the Borrower and any securities or other property of the Borrower in the possession of a Participant may at all times be held and treated as collateral security for the payment of the Obligations. Regardless of the adequacy of any collateral, any such deposits or other sums may be applied to or set off against Obligations at any time if the Borrower is primarily liable thereon, or at or after the maturity thereof if the Borrower is secondarily liable thereon. The Borrower irrevocably invites each financing institution which may consider becoming a Participant to rely on the provisions of this Section 9.04 as making the Participant a creditor of the Borrower and agrees that its becoming a Participant shall constitute an acceptance of the offer hereby made. Any and all rights to require the Agent or any Lender to exercise its rights or remedies with respect to any other collateral which secures the Loans, prior to exercising its right of setoff with respect to such deposits, credits or other property of the Borrower, are hereby knowingly, voluntarily and irrevocably waived; (b) Each Lender Bank agrees that if it shall, by exercising any right of setoff set-off or counterclaim or otherwise, receive (i) payment of a proportion of the aggregate amount of principal and interest due with respect to any Loan or Reimbursement Obligation owed to held by it which is greater than the proportion received by any other Lender Bank in respect of the aggregate amount of principal and interest due with respect to any Loan or Reimbursement Obligation owed to held by such other LenderBank or (ii) payment of a proportion of its participation in the LC Liabilities or Swingline Loans which is greater that the proportion received by any other Bank in respect of its participation in the LC Liabilities or Swingline Loans, as the case may be, the Lender Bank receiving such proportionately greater payment shall purchase such participations in the Loans Loans, the LC Liabilities and Reimbursement Obligations owed to the Swingline Loans, as the case may be, held by the other LendersBanks, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans and Reimbursement Obligations owed to held by the Lenders Banks shall be shared by the Lenders Banks pro ratarata and all such payments with respect to participations in the LC Liabilities and the Swingline Loans shall be shared pro rata by the Banks participating therein; provided that (i) nothing in this Section shall impair the right of any Lender Credit Party to exercise any right of setoff set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder to under the extent that any amount resulting from such setoff exceeds the then outstanding aggregate amount of Loans and Reimbursement Obligations and other obligations of the Borrower hereunder and under any other Financing Document, and (ii) nothing in any Financing Documents shall require any Lender to share any payments and distributions received by such Lender if such payments and distributions were made in respect of any obligations not constituting Loans or Reimbursement ObligationsLC Liabilities. The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan or Reimbursement Obligationthe LC Liabilities, whether or not acquired pursuant to the foregoing arrangements and regardless of the adequacy of any collateralarrangements, may exercise rights of setoff set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.