Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 5 contracts
Sources: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligationsoccurs, any and all deposits (general or specificincluding all account balances, time or demand, whether provisional or final, regardless final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to or for the Borrower credit or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower may be offset and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to toward the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect Obligations owing to such excessLender, either by way of distributionwhether or not the Obligations, pro tanto assignment of claimsor any part hereof, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementthen be due; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ai) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Agent, the L/C Issuer and the other Lenders, and (bii) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 5 contracts
Sources: Credit Agreement (FirstCash Holdings, Inc.), Credit Agreement (FirstCash Holdings, Inc.), Credit Agreement (Firstcash, Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of Banks provided by law, if the any collateralBorrower becomes insolvent, during the continuance of however evidenced, or any Event of Default under §12.1(a) or §12.1(b)occurs and is continuing, including in connection with each Bank is authorized at any acceleration of the Obligationstime and from time to time, without prior notice to such Borrower, any such notice being waived by such Borrower to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing by, maturity, such Bank to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off Borrowers against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or Obligations owing to become duesuch Bank, now existing or hereafter arisingexisting, irrespective of whether or not the Borrower Administrative Agent or the Guarantors to such Lender. Each of the Lenders agrees with each Bank shall have made demand under this Agreement or any other Lender that if Loan Document and although such Lender shall receive from the Borrower Obligations may be contingent or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementunmatured; provided that if all or any part of such excess payment is thereafter recovered from such Lenderthat, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Bank shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.8 and, pending such payment, shall be segregated by such Defaulting Lender Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersBanks, and (b) such the Defaulting Lender Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender Bank as to which it exercised such right of setoff. Each Bank agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Bank; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.
Appears in 4 contracts
Sources: Credit Agreement (NIKE, Inc.), Credit Agreement (NIKE, Inc.), Credit Agreement (NIKE, Inc.)
Setoff. Regardless To the extent permitted by applicable law, regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks or any of their respective Affiliates to the any Borrower or the Guarantors and any securities or other property of the any Borrower or the Guarantors in the possession of such Lender mayBank or such Affiliate (other than any accounts maintained pursuant to Rule 15c3-3 under the Securities Exchange Act of 1934, without notice to the Borrower as amended (or any Guarantor successor provision) as a “Special Reserve Bank Account for the Exclusive Use of Customers” (or under such other designation as may be specified under such rule or any such notice being expressly waived by the Borrower and each Guarantorsuccessor provision)) but with the prior written approval of the Agent, may be applied to or set off by such Bank or such Affiliate against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower or the Guarantors to such LenderBank; provided, that in the event that any Defaulting Bank shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.13 and, pending such payment, shall be segregated by such Defaulting Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Bank, and (y) the Defaulting Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Bank as to which it exercised such right of setoff. Each of the Lenders Banks agrees with each other Lender Bank that if such Lender Bank shall receive from the Borrower or a Guarantorany Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Obligations held by such Bank by Proceedings against any Borrower, by proof thereof in bankruptcy, reorganization, liquidation, receivership, or similar Proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes Obligations held by such Lender (but excluding the Swing Loan Note) Bank, any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes Obligations held by all of the LendersBanks (exclusive of payments to be made for the account of less than all of the Banks as provided in Sections 2.13, 3.2.2, 4.6, 4.7, 4.9 and 4.11), such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes Obligations held by it it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors any Credit Party and any securities or other property of the Borrower or the Guarantors such parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor Credit Party (any such notice being expressly waived by the Borrower and each Guarantorwaived) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderCredit Parties. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorCredit Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 4 contracts
Sources: Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 4 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Setoff. Regardless of the adequacy of any collateralWithout demand or notice, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where at which such deposits are held, but specifically excluding tenant security deposits, other fiduciary accounts and other segregated escrow accounts required to be maintained by the Borrower for the benefit of any third party) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors and its Subsidiaries or any securities or other property of the Borrower or the Guarantors its Subsidiaries in the possession of such the Administrative Agent or a Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderObligations. Each of the Lenders agrees with each other Lender that (a) if pursuant to any agreement between such Lender and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than with respect to the Obligations, such amount shall be applied ratably to such other Indebtedness and to the Obligations, and (b) if such Lender shall receive from the Borrower or a Guarantorits Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Obligations by proceedings against the Borrower or its Subsidiaries at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by by, or Reimbursement Obligations owed to, such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise otherwise, as shall result in each Lender receiving in respect of the Notes held by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In Notwithstanding the event that any Defaulting foregoing, no Lender shall exercise any such a right of setoffsetoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower or its Subsidiaries; and provided further, (a) all amounts so set off shall be paid over immediately if a Lender receives any amount in connection with the enforcement by such Lender against any particular assets held as collateral for Secured Indebtedness existing on the date hereof and unrelated to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations which is owing to such Defaulting Lender as by the Borrower, such Lender shall not be required to which it exercised ratably apply such right of setoffamount to the Obligations.
Appears in 4 contracts
Sources: Revolving Credit and Term Loan Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from Agent or any Lender of Lenders to any of the Borrower or the Guarantors Loan Parties and any securities or other property of the Borrower or the Guarantors Loan Parties in the possession of such Lender may, without notice to the Borrower Agent or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Lender may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Loan Parties to such Lender. Each Upon the occurrence and during the continuance of an Event Default, any Lender, including Agent with respect to the Advance Account, may, but shall not be obligated to freeze withdrawals from any account of the Lenders Loan Parties held by such Lender. Each Lender agrees with each other Lender that if such Lender shall receive from the Borrower any Loan Party or a GuarantorLoan Parties, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Forestar Group Inc.), Revolving and Term Credit Agreement (Forestar Group Inc.), Revolving and Term Credit Agreement (Forestar Group Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower Borrower, Parent and each Guarantorof the other Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Lender agrees to notify the Borrower promptly after any such set off and application; provided that the failure to give such notice shall not give the Borrower any cause of action or right to damages or affect the validity of such set off and application.
Appears in 4 contracts
Sources: Credit Agreement (Gladstone Commercial Corp), Credit Agreement (Gladstone Commercial Corp), Credit Agreement (Gladstone Commercial Corp)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders Lender agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff§14 AGENT.
Appears in 4 contracts
Sources: Term Loan Agreement (Independence Realty Trust, Inc.), Term Loan Agreement (Independence Realty Trust, Inc.), Term Loan Agreement (Independence Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors (subject, in the possession case of such Lender mayState Street, without notice to any agreements or limitations applicable to the Borrower or any Guarantor (Custodian’s rights with respect to any such notice being expressly waived by deposits which are contained in, and solely to the extent that such deposits constitute collateral subject to, any control agreement (i) entered into prior to the date hereof among the Custodian, the Borrower and each Guarantorone or more third parties or (ii) but entered into hereafter among the Custodian, the Borrower and one or more third parties that does not contain a waiver or prohibition of State Street’s right of setoff with the prior written approval of the Agent, respect to such deposits) may be applied to or set off setoff by such Bank against the payment of the Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors owing to such LenderBank. Each of the Lenders Banks agrees with each other Lender Bank that if such Lender Bank shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, or enforcement of a claim based on the Obligations owing to such Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by Obligations owing to such Lender (but excluding the Swing Loan Note) Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by Obligations owed to all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by Obligations owing to it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 4 contracts
Sources: Credit Agreement (Western Asset Premier Bond Fund), Credit Agreement (ClearBridge Energy MLP Total Return Fund Inc.), Credit Agreement (ClearBridge Energy MLP Fund Inc.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrower) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In Notwithstanding the foregoing, in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement § 14.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (by) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have.
Appears in 3 contracts
Sources: Term Loan Agreement (CoreSite Realty Corp), Term Loan Agreement (CoreSite Realty Corp), Term Loan Agreement (CoreSite Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Healthcare Trust, Inc.), Senior Secured Credit Agreement (Healthcare Trust, Inc.), Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust II, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks or any affiliate of a Bank to any of the Borrower or the Guarantors Borrowers and any securities or other property of any of the Borrower or the Guarantors Borrowers in the possession of such Lender may, without notice to the Borrower Bank or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval affiliate of the Agent, a Bank may be applied to or set off by such Bank against the payment of Obligations and, with respect to Ryder, Guaranteed Obligations, and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower or the Guarantors to such LenderBank, the other Banks, the Issuing Bank and the Agents. Each of the Lenders agrees Any amounts set off pursuant to this §14 shall be distributed ratably in accordance with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by §28 among all of the Lenders with respect to Banks by the Notes held by all of the LendersBank setting off such amount; provided, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result that in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender Bank shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement §2.16 and, pending such payment, shall be segregated by such Defaulting Lender Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersBanks, and (by) such the Defaulting Lender Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender Bank as to which it exercised such right of setoff. If any Bank fails to share such setoff ratably, the Administrative Agent, the Canadian Agent and/or the U.K. Agent, as applicable, shall have the right to withhold such Bank’s share of any Borrower’s payments until each of the Banks shall have, in the aggregate, received a pro rata repayment.
Appears in 3 contracts
Sources: Global Revolving Credit Agreement (Ryder System Inc), Global Revolving Credit Agreement (Ryder System Inc), Global Revolving Credit Agreement (Ryder System Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorGuarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations or the Hedge Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Without limiting the foregoing, each of the Bid Loan Lenders agrees with each other Bid Loan Lender holding a Bid Loan made as part of the same Bid Loan Borrowing that if such Bid Loan Lender shall receive from Borrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Bid Loan Note held by such Bid Loan Lender any amount in excess of its ratable portion of the payments received by all of the Bid Loan Lenders with respect to the Bid Loan Notes held by all of such Bid Loan Lenders relating to such Bid Loan Borrowing, such Bid Loan Lender will make such disposition and arrangements with the other Bid Loan Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bid Loan Lender receiving in respect of such Bid Loan Notes held by it its proportionate payment as contemplated by this Agreement. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any of the Lenders or any Affiliated Lender to the Borrower Borrower, the Company or any of the other Guarantors and any securities or other property of the Borrower Borrower, the Company or any of the other Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Affiliated Lender may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower, the Company or any of the other Guarantors to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (b) if such Lender shall receive from the Borrower Borrower, the Company or a Guarantorany of the other Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrower, the Company or any of the other Guarantors at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (Sl Green Realty Corp), Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp), Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Setoff. Regardless In the event that any obligation of the adequacy of Guarantor now or hereafter existing under this Agreement or any collateralother Loan Document shall have become due and payable, during the continuance of any after an Event of Default under §12.1(a) or §12.1(b)the Loan Documents has occurred, including in connection with any acceleration of each Lender shall have the Obligations, any deposits (general or specific, right from time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender maytime, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against and apply to such due and payable amount any obligation of any nature of each Lender to the payment of Obligations Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by the Guarantor with the Lender. Such right shall be absolute and any and unconditional in all other liabilitiescircumstances and, directwithout limitation, or indirect, shall exist whether such obligation to the Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due or to become dueand payable at the time of such setoff), now existing or hereafter arising, regardless of the Borrower offices or branches through which the Guarantors parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Each Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoff or banker's lien available to any Lender under this Section 5.8, at law or otherwise. The Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in any Guaranteed Obligations of the Lenders agrees with Guarantor under this Agreement, shall have the same rights of setoff as each other Lender that if as provided in this Section 5.8 (regardless of whether such Lender shall receive from the Borrower affiliate or participant otherwise would be deemed a Guarantor, whether by voluntary payment, exercise creditor of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffGuarantor).
Appears in 3 contracts
Sources: Short Term Credit Agreement (Curtiss Wright Corp), Credit Agreement (Curtiss Wright Corp), Guaranty and Suretyship Agreement (Black Box Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may WITH THE PRIOR APPROVAL OF THE AGENT be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (b) if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In Notwithstanding the event that any Defaulting foregoing, no Lender shall exercise any such a right of setoffsetoff if such exercise would limit or prevent the exercise of any other remedy, (a) all amounts so set off shall be paid over immediately right to Collateral or other recourse against the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffBorrower.
Appears in 3 contracts
Sources: Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust)
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of Lenders under applicable law, if any collateralBorrower becomes insolvent, during the continuance of however evidenced, or any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsSection 7.2 occurs and is continuing, any and all deposits (general or specificincluding all account balances, time or demand, whether provisional or final, regardless final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to or for the Borrower credit or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession account of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower may be offset and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to toward the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect Obligations owing to such excessLender, either by way of distributionwhether or not the Obligations, pro tanto assignment of claimsor any part thereof, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementthen be due; provided that if all this Section 12.1 shall not apply to amounts attributable or in any way related to the clearing and settlement of Visa card products or travelers checks or any part of such excess payment is thereafter recovered from such Lenderother transaction for which any Borrower performs clearing or settlement services; and provided further, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over by such Defaulting Lender immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.29 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, Lenders and (b) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the applicable Borrower and the Administrative Agent after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application.
Appears in 3 contracts
Sources: Five Year Revolving Credit Agreement (Visa Inc.), 364 Day Revolving Credit Agreement (Visa Inc.), 364 Day Revolving Credit Agreement (Visa Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of Banks provided by law, if the Borrower becomes insolvent, however evidenced, or any collateralDefault occurs and is continuing, during each Bank is authorized at any time and from time to time, without prior notice to the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsBorrower, any such notice being waived by the Borrower to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing by, maturity, such Bank to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or Obligations owing to become duesuch Bank, now existing or hereafter arisingexisting, irrespective of whether or not the Borrower Administrative Agent or the Guarantors to such Lender. Each of the Lenders agrees with each Bank shall have made demand under this Agreement or any other Lender that if Loan Document and although such Lender shall receive from the Borrower Obligations may be contingent or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementunmatured; provided that if all or any part of such excess payment is thereafter recovered from such Lenderthat, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Bank shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.8 and, pending such payment, shall be segregated by such Defaulting Lender Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersBanks, and (b) such the Defaulting Lender Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender Bank as to which it exercised such right of setoff. Each Bank agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Bank; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.
Appears in 3 contracts
Sources: Credit Agreement (NIKE, Inc.), Credit Agreement (Nike Inc), Credit Agreement (Nike Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorGuarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations or the Hedge Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Setoff. Regardless Subject to Section 3.3 and in addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, the Borrower hereby authorizes the Administrative Agent, each Lender, each Affiliate of the adequacy of Administrative Agent or any collateralLender, during the continuance of and each Participant, at any time while an Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender mayexists, without notice to the Borrower or to any Guarantor (other Person, any such notice being hereby expressly waived by waived, but in the Borrower and each Guarantor) but with case of a Lender, an Affiliate of a Lender, or a Participant, subject to receipt of the prior written approval consent of the AgentRequisite Lenders exercised in their sole discretion, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured)(other than deposits of an unaffiliated third party) and any other liabilitiesindebtedness at any time held or owing by the Administrative Agent, directsuch Lender, any Affiliate of the Administrative Agent or such Lender, or indirectsuch Participant, absolute to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of the Borrower or the Guarantors to such Lender. Each against and on account of any of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower Obligations, irrespective of whether or a Guarantor, whether by voluntary payment, exercise of the right of setoff, not any or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect Loans and all other Obligations have been declared to be, or have otherwise become, due and payable as permitted by Section 11.2, and although such Obligations shall be contingent or unmatured. Notwithstanding anything to the Notes held by all of the Lenderscontrary in this Section, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 3.9 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, Lenders and (by) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Term Loan Agreement (Realty Income Corp), Term Loan Agreement (Spirit Realty Capital, Inc.), Term Loan Agreement (Spirit Realty Capital, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Credit Agreement (Independence Realty Trust, Inc), Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §Section 12.1(a) or §Section 12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower Borrowers or the Guarantors and any securities or other property of the Borrower Borrowers or the Guarantors in the possession of such Lender may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the each Borrower and each Guarantor) but with the prior written approval of the Administrative Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers or the Guarantors to such Lender. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from Borrowers or the Borrower or a GuarantorGuarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (American Healthcare REIT, Inc.), Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.), Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Setoff. Regardless of the adequacy of At any collateral, time during the continuance of any an Event of Default under §12.1(a) or §12.1(b)Default, including in connection with the Administrative Agent, Lenders, and any acceleration of their Affiliates are authorized, to the Obligationsfullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency, maturity, or the branch where such deposits are held) or at any time held and other sums credited by or due from obligations (in whatever currency) at any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived time owing by the Borrower and each Guarantor) but with the prior written approval of the Administrative Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make or such disposition Affiliate to or for the credit or the account of an Obligor against any Obligations, irrespective of whether or not the Administrative Agent, such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and arrangements with the other Lenders with respect although such Obligations may be contingent or unmatured or are owed to such excess, either by way of distribution, pro tanto assignment of claims, subrogation a branch or otherwise as shall result in each Lender receiving in respect office of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderAdministrative Agent, such disposition and arrangements shall be rescinded and Lender or such Affiliate different from the amount restored to the extent of branch or office holding such recoverydeposit or obligated on such indebtedness, but without interest. In provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 4.2.1(b) and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, and the Lenders, and (by) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of the Administrative Agent, each Lender and each such Affiliate under this Section are in addition to other rights and remedies (including other rights of setoff) that such Person may have. NOTWITHSTANDING THE FOREGOING, NO LENDER AND NO PARTICIPANT SHALL EXERCISE ANY RIGHT OF SETOFF, BANKER’S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF ANY OBLIGOR HELD OR MAINTAINED BY SUCH PERSON WITHOUT THE WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT.
Appears in 2 contracts
Sources: Senior Secured Super Priority Debtor in Possession Loan and Security Agreement (Core Scientific, Inc./Tx), Loan and Security Agreement (Core Scientific, Inc./Tx)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Parent Borrower or the Guarantors any Subsidiary Credit Party and any securities or other property of the Borrower or the Guarantors such parties in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor Subsidiary Credit Party (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers or the Guarantors any Subsidiary Credit Party to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the a Borrower or a Guarantorany Subsidiary Credit Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Bluerock Residential Growth REIT, Inc.), Credit Agreement (Bluerock Residential Growth REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Mid America Apartment Communities Inc), Credit Agreement (Mid America Apartment Communities Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any collateralLenders provided by Law, upon the occurrence and during the continuance of any Event of Default under §12.1(a) or §12.1(b)Default, including in connection with any acceleration after obtaining the prior written consent of the ObligationsAdministrative Agent, each Lender is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by each of the Borrowers (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off respective Loan Parties against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to which it exercised notify the BV Borrower and the Administrative Agent after any such right set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of any Borrower or any Domestic Subsidiary, it being understood that (a) the Equity Interests of any Foreign Subsidiary that is not a Loan Party do not constitute such an asset and (a) the provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrowers’ obligations to make any mandatory prepayment pursuant to Section 2.05(b)(ii).
Appears in 2 contracts
Sources: Credit Agreement (Sensata Technologies Holding N.V.), Credit Agreement (Sensata Technologies Holland, B.V.)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to Borrower, the Borrower Company or any of the other Guarantors and any securities or other property of Borrower, the Borrower Company or any of the other Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of Borrower, the Company or any of the other Guarantors to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (b) if such Lender shall receive from Borrower, the Borrower Company or a Guarantorany of the other Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against Borrower, the Company or any of the other Guarantors at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Sl Green Realty Corp), Credit and Guaranty Agreement (Sl Green Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents; provided that notwithstanding the foregoing or anything in the Loan Documents to the contrary, such right of setoff as to Borrower and REIT shall not apply to any account of Borrower or REIT that is not an account tied to a specific property or for the collection of rents from a specific property. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Tier Reit Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Subsidiary Guarantors and any securities or other property of the Borrower or the Subsidiary Guarantors in the possession of such Lender may, without notice to the Borrower or any Subsidiary Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Subsidiary Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Subsidiary Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorSubsidiary Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Sealy Industrial Partners IV, LP), Credit Agreement (Sealy Industrial Partners IV, LP)
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any Guarantor and any securities or other property of the Borrower or the Guarantors any Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor the Guarantors (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors any Guarantor to such LenderLender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (STORE CAPITAL Corp), Credit Agreement (STORE CAPITAL Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy Lenders provided by law, each Lender shall have the right, but only with the prior consent of any collateralAgent, during the continuance of any Event of Default under §12.1(a) which consent may be granted or §12.1(b)withheld by Agent in its sole and absolute discretion, including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, but without prior notice to the Borrower or any Guarantor (Borrower, any such notice being expressly waived by Borrower to the extent permitted by applicable law, upon the occurrence and during the continuance of a Default or Event of Default, to set-off and apply against any indebtedness, whether matured or unmatured, of Borrower and each Guarantor) but with to such Lender, any amount owing from such Lender to Borrower, at or at any time after, the prior written approval happening of any of the Agentabove mentioned events, be applied and as security for such indebtedness, Borrower hereby grants to or set off against the payment of Obligations and each Lender a continuing security interest in any and all other liabilitiesdeposits, direct, accounts or indirect, absolute moneys of Borrower then or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to thereafter maintained with such Lender, subject in each case to Section 2.10(b) hereof. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the The aforesaid right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held set-off may be exercised by such Lender (but excluding the Swing Loan Note) against Borrower or against any amount trustee in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lendersbankruptcy, such Lender will make such disposition and arrangements with the other Lenders with respect to such excessdebtor in possession, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of Borrower or against anyone else claiming through or against Borrower or such trustee in bankruptcy, debtor in possession, assignee for the Agent and benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised fact that such right of setoff.set-off shall not have been exercised by such Lender prior to the occurrence of a Default or
Appears in 2 contracts
Sources: Credit Agreement (Axt Inc), Credit Agreement (Axt Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of any Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, after an Event of Default under the Loan Documents has occurred, each Lender shall exercise have the right from time to time, without notice to such Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of each Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by such Guarantor with such Lender. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to such Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker’s lien available to any Lender under this Section 5.8, (a) all amounts so set off shall be paid over immediately to the Agent for further application at law or otherwise. Each Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in accordance with the provisions any Guaranteed Obligations of any Guarantor under this Agreement and, pending such paymentAgreement, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for have the benefit same rights of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting setoff as each Lender as to which it exercised provided in this Section 5.8 (regardless of whether such right affiliate or participant otherwise would be deemed a creditor of setoffsuch Guarantor).
Appears in 2 contracts
Sources: Guaranty and Suretyship Agreement (Black Box Corp), Guaranty and Suretyship Agreement (Black Box Corp)
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the continuance occurrence of any Event of Default under §12.1(a) Default, each Lender and each subsequent holder of any Pool One Note or §12.1(b), including in connection with Pool Two Note is hereby authorized by the Borrowers at any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender time to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender maytime, without notice to the Borrower Borrowers or to any Guarantor (other Person, any such notice being hereby expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agentwaived, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) relating or attributable to or associated with a Hotel and any other liabilitiesindebtedness at any time held or owing by the Lender or that subsequent holder to or for the credit or the account of either Borrower whether or not matured, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, against and on account of the Borrower or the Guarantors to such Lender. Each obligations and liabilities of the Lenders agrees with each other Borrowers to that Lender or that if such Lender shall receive from subsequent holder under the Borrower Loan Documents, including, but not limited to, all claims of any nature of description arising out of or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements connected with the other Lenders with respect to such excessLoan Documents, either by way irrespective of distribution, pro tanto assignment of claims, subrogation whether or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, not (a) all amounts so set off that Lender or that subsequent holder shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and have made any demand hereunder or (b) the principal of or the interest on the Loans and other amounts due hereunder shall have become due and payable pursuant to Section 7.2 and although said obligations and liabilities, or any of them, may be contingent or unmatured. The Agent agrees to notify Borrowers in writing after any such Defaulting Lender set-off and application made by Lenders; provided, however, that the failure to give such notice shall provide promptly to not affect the Agent a statement describing in reasonable detail the Obligations owing to validity of such Defaulting Lender as to which it exercised such right of setoffset-off and application.
Appears in 2 contracts
Sources: Loan Agreement (Summit Hotel Properties, Inc.), Loan Agreement (Summit Hotel Properties, LLC)
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of Lenders under applicable law, if any collateralBorrower becomes insolvent, during the continuance of however evidenced, or any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsSection 7.2 occurs and is continuing, any and all deposits (general or specificincluding all account balances, time or demand, whether provisional or final, regardless final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to or for the Borrower credit or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession account of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower may be offset and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to toward the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect Obligations owing to such excessLender, either by way of distributionwhether or not the Obligations, pro tanto assignment of claimsor any part thereof, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementthen be due; provided that if all this Section 12.1 shall not apply to amounts attributable or in any way related to the clearing and settlement of Visa card products or travelers checks or any part of such excess payment is thereafter recovered from such Lenderother transaction for which any Borrower performs clearing or settlement services; and provided further, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over by such Defaulting Lender immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.28 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, Lenders and (b) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the applicable Borrower and the Administrative Agent after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Visa Inc.), Five Year Revolving Credit Agreement (Visa Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Master Credit Agreement (JDN Realty Corp), Master Credit Agreement (JDN Realty Corp)
Setoff. Regardless Without limiting any other right of Lenders, upon the adequacy of any collateral, occurrence and during the continuance of any an Event of Default under §12.1(a) Default, the Agent or §12.1(b)any Lender, including in connection with any acceleration of the Obligationsat its sole election, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender may apply to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and Indebtedness any and all other liabilitiesproperty of any Borrower held by such Person in any capacity, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and may exercise a right of the Borrower or the Guarantors setoff against any monies owed to such LenderPerson by any Borrower. Each of the Lenders agrees with each other If any Lender that if such Lender shall receive from the Borrower or a Guarantorshall, whether by voluntary payment, exercise of the exercising any right of setoff, setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Loans, or participations in Letter of Credit Outstandings or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall retain purchase (for cash at face value) participations in the Term Loans, Revolving Loans and apply participations in Letter of Credit Outstandings and Swingline Loans of other Lenders to the payment extent necessary so that the benefit of all such payments shall be shared by the Note Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans; provided that (i) if any such participations are purchased and all or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderspayment giving rise thereto is recovered, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements participations shall be rescinded and the amount purchase price restored to the extent of such recovery, but without interest. In , and (ii) the event that provisions of this paragraph shall not be construed to apply to any Defaulting Lender shall exercise payment made by any such right of setoff, (a) all amounts so set off shall be paid over immediately Borrower pursuant to the Agent for further application and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letter of Credit Outstandings and Swingline Loans to any assignee or participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Agreement and, pending such payment, paragraph shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly apply). Each Borrower consents to the Agent foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a statement describing in reasonable detail participation pursuant to the Obligations owing foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such Defaulting participation as fully as if such Lender as to which it exercised were a direct creditor of such right Borrower in the amount of setoffsuch participation.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp), Revolving Credit and Term Loan Agreement (Air Methods Corp)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Term Loan Agreement (Mid America Apartment Communities Inc), Term Loan Agreement (Mid America Apartment Communities Inc)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors any Subsidiary Guarantor and any securities or other property of the Borrower or the Guarantors any Subsidiary Guarantor in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Subsidiary Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors any Subsidiary Guarantor to such Lender. Each of the Lenders Lender agrees with each other Lender that if such Lender shall receive from the Borrower or a any Subsidiary Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Independence Realty Trust, Inc.), Credit Agreement (Independence Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateralcollateral (if any), during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations Liabilities and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Loan Agreement (Dynamics Research Corp), Loan Agreement (Dynamics Research Corp)
Setoff. Regardless To the extent permitted by applicable law, regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks or any of their respective Affiliates to the any Borrower or the Guarantors and any securities or other property of the any Borrower or the Guarantors in the possession of such Lender mayBank or such Affiliate (other than any accounts maintained pursuant to Rule 15c3-3 under the Securities Exchange Act of 1934, without notice to the Borrower as amended (or any Guarantor successor provision) as a “Special Reserve Bank Account for the Exclusive Use of Customers” (or under such other designation as may be specified under such rule or any such notice being expressly waived by the Borrower and each Guarantorsuccessor provision)) but with the prior written approval of the Agent, may be applied to or set off by such Bank or such Affiliate against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower or the Guarantors to such LenderBank; provided, that in the event that any Defaulting Bank shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.13 and, pending such payment, shall be segregated by such Defaulting Bank from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Bank, and (y) the Defaulting Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Bank as to which it exercised such right of setoff. Each of the Lenders Banks agrees with each other Lender Bank that if such Lender Bank shall receive from the Borrower or a Guarantorany Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Obligations held by such Bank by Proceedings against any Borrower, by proof thereof in bankruptcy, reorganization, liquidation, receivership, or similar Proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes Obligations held by such Lender (but excluding the Swing Loan Note) Bank, any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes Obligations held by all of the LendersBanks (exclusive of payments to be made for the account of less than all of the Banks as provided in Sections 2.13, 3.2.2, 4.6, 4.7, 4.9 and 4.11), such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes Obligations held by it it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.61 AMERICAS/2023306744.4
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Setoff. Regardless of the adequacy of any collateralWithout demand or notice, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where at which such deposits are held, but specifically excluding tenant security deposits, other fiduciary accounts and other segregated escrow accounts required to be maintained by the Borrower for the benefit of any third party) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors and its Subsidiaries or any securities or other property of the Borrower or the Guarantors its Subsidiaries in the possession of such the Administrative Agent or a Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderObligations. Each of the Lenders agrees with each other Lender that (a) if pursuant to any agreement between such Lender and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than with respect to the Obligations, such amount shall be applied ratably to such other Indebtedness and to the Obligations, and (b) if such Lender shall receive from the Borrower or a Guarantorits Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Obligations by proceedings against the Borrower or its Subsidiaries at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise otherwise, as shall result in each Lender receiving in respect of the Notes held by it it, its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In Notwithstanding the event that any Defaulting foregoing, no Lender shall exercise any such a right of setoffsetoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower or its Subsidiaries; and provided further, (a) all amounts so set off shall be paid over immediately if a Lender receives any amount in connection with the enforcement by such Lender against any particular assets held as collateral for Secured Indebtedness existing on the date hereof and unrelated to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations which is owing to such Defaulting Lender as by the Borrower, such Lender shall not be required to which it exercised ratably apply such right of setoffamount to the Obligations.
Appears in 2 contracts
Sources: Term Loan Agreement (Mack Cali Realty Corp), Term Loan Agreement (Mack Cali Realty L P)
Setoff. Regardless Without limitation of any rights of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Event of Default occurs, Borrower authorizes each Lender, with the prior written consent of the Administrative Agent, to offset and apply all deposits, credits and deposit accounts (including all account balances, whether provisional or final and whether or not collected or available, but in all events excluding amounts held in Customer Deposit Accounts) of the Borrower with such Lender or any Affiliate of such Lender (the “Deposits”) toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, are contingent or unmatured, and regardless of the existence or adequacy of any collateral, during the continuance of guaranty or any Event of Default under §12.1(a) other security, right or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, remedy available to such Lender or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors Lenders; provided, that in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the LC Issuer, and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Extra Space Storage Inc.), Credit Agreement (Extra Space Storage Inc.)
Setoff. Regardless The Company agrees that the Administrative Agent and each Lender have all rights of set-off and bankers’ lien provided by applicable law, and in addition thereto, the adequacy of Company agrees that at any collateral, during the continuance of time any Event of Default under §12.1(a) or §12.1(b)exists, including in connection with any acceleration of the ObligationsAdministrative Agent, each Lender and, to the extent permitted by applicable law, any deposits (general or specificAffiliate thereof, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and may apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion obligations of the payments received by Borrowers hereunder, whether or not then due, any and all balances, credits, deposits, accounts or moneys of the Lenders Borrowers then or thereafter with respect to the Notes held by all of the LendersAdministrative Agent, such Lender will make or such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this AgreementAffiliate; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffset-off, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.10 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, each Issuing Lender and the Lenders, and (by) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender obligations of the Borrowers as to which it exercised such right of setoffset-off; provided further, that to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor. Each Lender agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Lender or such Affiliate; provided that the failure to give such notice shall not affect the validity of such set-off and application.
Appears in 2 contracts
Sources: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower Borrower, Parent and each Guarantorof the other Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. ▇▇▇▇▇▇ agrees to notify the Borrower promptly after any such set off and application; provided that the failure to give such notice shall not give the Borrower any cause of action or right to damages or affect the validity of such set off and application.
Appears in 2 contracts
Sources: Credit Agreement (Gladstone Commercial Corp), Term Loan Agreement (Gladstone Commercial Corp)
Setoff. Regardless The Borrower hereby grants each Lender a security interest in all deposits, credits and deposit accounts (including all account balances, whether provisional or final and whether or not collected or available) of the Borrower with such Lender or any Affiliate of such Lender (the “Deposits”). In addition to, and without limitation of, any rights of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Event of Default occurs and is continuing, Borrower authorizes each Lender to offset and apply all such Deposits toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, shall then be due and regardless of the existence or adequacy of any collateral, during the continuance of guaranty or any Event of Default under §12.1(a) other security, right or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, remedy available to such Lender or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors Lenders; provided, that in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the LC Issuer, and the Lenders, and (by) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Omnibus Amendment (Plexus Corp), Credit Agreement (Plexus Corp)
Setoff. Regardless (1) In addition to any rights now or hereafter granted under Applicable Law and not by way of the adequacy limitation of any collateralsuch rights, during the continuance of any Event of Default under §12.1(a) or §12.1(b)Default, including in connection with any acceleration of the Obligationseach Lender, any participant with such Lender in the Loans and each Affiliate of each Lender are hereby authorized by the Borrowers at any time or from time to time, without notice to any Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or specificspecial, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or demand, provisional owing by any Lender or final, regardless any Affiliate of currency, maturityany Lender or any participant to or for the credit or the account of any Borrower against and on account of the Secured Obligations irrespective or whether or not the Agent or such Lender shall have made any demand under this Agreement or any of the Loan Documents, or the branch where Agent or such deposits are heldLender shall have declared any or all of the Secured Obligations to be due and payable as permitted by Section 12.2 and although such Secured Obligations shall be contingent or unmatured.
(2) If any Lender shall obtain payment of any principal of or interest on any Loan made by it or on any other Secured Obligation owing to such Lender through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, it shall promptly so notify the Agent (which shall promptly notify the other Lenders). If, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on any Revolving Credit Loan to such Lender than the percentage received by any other Lender or Lenders in respect of the principal of or interest on any Revolving Credit Loan owing to such other Lender or Lenders, it shall, at the request of such other Lender or Lenders, promptly purchase from such other Lender or Lenders participations in (or, if and to the extent specified by such first Lender, direct interests in) the principal of or interest on Revolving Credit Loans owing to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that such first Lender and such other Lender or Lenders (such first Lender and such other Lender or Lenders being collectively referred to as the "Sharing Lenders") shall share the benefit of such excess payment (net of any expenses which may be incurred by such first Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid amounts of such obligations owing to each of the Sharing Lenders. To such end all the Sharing Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(3) The Borrowers agree that any Lender so purchasing a participation in obligations hereunder of the Borrowers to another Lender or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and Lenders may exercise any and all other liabilitiesrights of set-off, directbankers' lien, counterclaim or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders similar rights with respect to such excess, either by way participation as fully as if such first Lender were a direct holder of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect obligations of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part Borrowers in the amount of such excess payment is thereafter recovered from such Lender, such disposition and arrangements participation. Nothing contained herein shall be rescinded and the amount restored require any Lender to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right or shall affect the right of setoffany Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrowers.
(a4) all amounts so set If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a set- off to which Section 15.4(b) hereof applies, such Lender shall be paid over immediately to the Agent for further application extent practicable, exercise its rights in accordance respect of such secured claim in a manner consistent with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit rights of the Agent and Lenders entitled under this Section 15.4 to share in the Lenders, and (b) benefits of any recovery on such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffsecured claim.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trism Inc /De/), Loan and Security Agreement (Trism Inc /De/)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower Borrower, the Company or any of the other Guarantors and any securities or other property of the Borrower Borrower, the Company or any of the other Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower, the Company or any of the other Guarantors to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (b) if such Lender shall receive from the Borrower Borrower, the Company or a Guarantorany of the other Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrower, the Company or any of the other Guarantors at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Sl Green Realty Corp), Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Setoff. Regardless of the adequacy of any collateralsecurity for the Obligations, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Loan Parties and any securities or other property of the Borrower or the Guarantors Loan Parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor Loan Party (any such notice being expressly waived by the Borrower and each GuarantorLoan Parties) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorLoan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (Behringer Harvard Reit I Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Parent Borrower or the Guarantors any Subsidiary Credit Party and any securities or other property of the Borrower or the Guarantors such parties in the possession of such Lender or any Affiliate may, without notice to the any Borrower or any Guarantor Subsidiary Credit Party (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers or the Guarantors any Subsidiary Credit Party to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the a Borrower or a Guarantorany Subsidiary Credit Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the AgentAgent and the Required Lenders, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from Agent or any Lender of Lenders to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower Agent or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Lender may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrower, as applicable, to such Lender. Upon the occurrence and during the continuance of an Event Default, any Lender, including Agent, may, but shall not be obligated to freeze withdrawals from any account of Borrower held by such Lender. Each of the Lenders Lender agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any collateralrights now or hereafter granted under applicable law, upon the occurrence and during the continuance of any Event of Default under §12.1(a) Default, each Lender, each Issuing Bank and any Affiliate of any Lender or §12.1(b), including in connection with Issuing Bank is hereby authorized by each Borrower at any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender time to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender maytime, without notice to the Borrower or any Guarantor Person (any such notice being hereby expressly waived by the Borrower and each Guarantorwaived) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of any Borrower against and on account of the Borrower or Obligations of the Guarantors Borrowers to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans, Letters of Credit, Acceptances and all claims of any nature or description arising out of or in connection with this Agreement or the Notes, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder and under the Notes to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender and each Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from it shall, to the Borrower or a Guarantorextent it is lawfully entitled to do so, whether by voluntary paymentupon the request of the Requisite Lenders, exercise its setoff rights hereunder against any accounts of the right of setoff, any Borrower now or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right either of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffthem.
Appears in 2 contracts
Sources: Credit Agreement (Donna Karan International Inc), Credit Agreement (Donna Karan International Inc)
Setoff. Regardless of the adequacy of any collateralsecurity for the Obligations, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Credit Parties and any securities or other property of the Borrower or the Guarantors Credit Parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor Credit Party (any such notice being expressly waived by the Borrower and each GuarantorCredit Parties) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Credit Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Credit Agreement (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Setoff. Regardless Subject to Section 8.4(d)(ii) of the adequacy of any collateralPurchase Agreement, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors this Note and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note Principal Amount, interest (if applicable) and other amounts due hereunder shall be subject to offset and/or reduction by Payor, in whole or Notes held in part, on account of any amounts now or hereafter owing by such Lender (but excluding the Swing Loan Note) Payee or any amount in excess of its ratable portion Affiliates to Payor or any of its Affiliates under the Purchase Agreement or any of the payments received by all Related Agreements or otherwise, it being acknowledged and agreed that the availability of such setoff rights shall not be deemed to limit or affect the right of any Purchaser Indemnified Party to seek recovery against Payee or any of its Affiliates directly in lieu of such setoff rights. For the avoidance of doubt and without limiting the generality of the Lenders with respect to the Notes held by all foregoing, if as of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffInstallment Date, (a) the aggregate amount of Losses then claimed in good faith by Payor to have been suffered by the Purchaser Indemnified Parties in connection with all amounts so set off then unresolved indemnification claims pursuant to the Purchase Agreement exceeds (b) the amount obtained by multiplying (i) the number of Holdback Textura Shares then held in escrow by Escrow Holder pursuant to Section 6.1 of the Purchase Agreement by (ii) the Per Share Price (i.e., such that there is not then a positive Holdback Cushion Amount), Payor shall be paid over immediately entitled to exercise its setoff rights pursuant to this Paragraph 4 and withhold from payments otherwise due on such date an amount equal to the Agent for further application excess of the aggregate Losses described in the foregoing clause (a) over the amount described in the foregoing clause (b) (it being understood that such set-off amounts shall not become due (and no interest shall accrue thereupon) unless and until, and then only to the extent of, any positive Holdback Cushion Amount that thereafter becomes available as determined in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffPurchase Agreement).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Textura Corp), Asset Purchase Agreement (Textura Corp)
Setoff. (A) Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors Guarantors, if any, and any securities or other property of the Borrower or the Guarantors Guarantors, if any, in the possession of such Lender (or such Lender’s Affiliate) may, without notice to the Borrower or any Guarantor Guarantor, if any, (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors, if any) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors , if any, to such Lender. , Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice.
(B) Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, if any, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of In the adequacy of event that any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property obligation of the Borrower now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, each Lender is hereby authorized by the Guarantors in the possession of such Lender mayBorrower, at any time and from time to time, without notice notice, (a) to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwiseagainst, and shall retain to appropriate and apply to the payment of, the Obligations and liabilities of the Note Borrower under the Loan Documents (whether matured or Notes held unmatured, fixed or contingent or liquidated or unliquidated) any and all amounts owing by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result Borrower (whether payable in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Dollars or any part of such excess payment is thereafter recovered from such Lenderother currency, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recoverywhether matured or unmatured, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such paymentin the case of deposits, shall be segregated by such Defaulting Lender from its other funds whether general or special, time or demand and deemed held in trust for the benefit of the Agent and the Lenders, however evidenced) and (b) pending any such Defaulting Lender shall provide promptly action, to the Agent extent necessary, to hold such amounts as collateral to secure such Obligations and liabilities and to return as unpaid for insufficient funds any and all checks and other items drawn against any deposits so held as such Lender in its sole discretion may elect. The Borrower hereby grants to each Lender a statement describing security interest in reasonable detail all deposits and accounts maintained with, and all other assets of the Obligations owing Borrower in the possession of, the Lender. The rights of each Lender under this Section 10.12 are in addition to other rights and remedies (including other rights of set-off) which such Defaulting Lender may have. The Borrower agrees that, to the fullest extent permitted by Law, any Affiliate of each Lender, and any holder of a participation in any obligation of the Borrower under this Agreement, shall have the same rights of setoff as such Lender as provided in this Section 10.12 regardless of whether such Affiliate or participant otherwise would be deemed a creditor of the Borrower. Each Lender agrees to which it exercised notify the Borrower and the Agent promptly after any such right setoff and application; provided, that the failure to give such notice shall not affect the validity of setoffsuch setoff and application.
Appears in 1 contract
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any Guarantor and any securities or other property of the Borrower or the Guarantors any Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor the Guarantors (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors any Guarantor to such LenderLender under the Loan Documents; provided that with respect to ▇▇▇▇▇▇▇▇’s commercial banking accounts with ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Term Credit Agreement
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorGuarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations or the Hedge Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from Agent or any Lender of Lenders to any of the Borrower or the Guarantors Loan Parties and any securities or other property of the Borrower or the Guarantors Loan Parties in the possession of such Lender may, without notice to the Borrower Agent or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Lender may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Loan Parties, as applicable, to such Lender. Upon the occurrence and during the continuance of an Event Default, any Lender, including Agent, may, but shall not be obligated to freeze withdrawals from any account of any Loan Party held by such Lender. Each of the Lenders Lender agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantorany Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Credit Agreement (Emeritus Corp\wa\)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Pledgor and any securities or other property of the Borrower or the Guarantors such parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrower) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Pledgor to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Pledgor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of Guarantor hereby authorizes Lender, at any collateraltime and from time to time, during the continuance of any without notice, which is hereby expressly waived by Guarantor, and whether or not an Event of Default under §12.1(a) shall have occurred or §12.1(b), including Lender shall have declared the Guaranteed Obligations to be due and payable in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but accordance with the prior written approval of the Agent, be applied terms hereof (i) to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwiseagainst, and shall retain to appropriate and apply to the payment of the Note Guarantor’s obligations and liabilities under this Guaranty (whether matured or Notes held unmatured, fixed or contingent, liquidated or unliquidated), any and all amounts owing by such Lender to Guarantor (but excluding the Swing Loan Note) any amount whether payable in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all U.S. dollars or any part other currency, whether matured or unmatured, and in the case of deposits, whether general or special (except trust and escrow accounts), time or demand and however evidenced) and (ii) pending any such excess payment is thereafter recovered from such Lenderaction, such disposition and arrangements shall be rescinded and the amount restored to the extent of necessary, to hold such recoveryamounts as collateral to secure such obligations and liabilities and to return as unpaid for insufficient funds any and all checks and other items drawn against any deposits so held as Lender, but without interestin its sole discretion, may elect. In the event that any Defaulting Lender shall exercise any Every such right of setoff, (a) all amounts so set off setoff shall be paid over deemed to have been exercised immediately upon the occurrence of a demand for payment of the Guaranteed Obligations hereunder without any action of Lender, although Lender may enter such setoff on its books and records at a later time. No failure by Lender to the Agent for further application in accordance file, record or otherwise perfect any lien or security interest, nor any improper filing or recording, nor any failure by Lender to insure or protect any security nor any other dealing (or failure to deal) with the provisions of this Agreement and, pending such paymentany security by Lender, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for impair or release the benefit obligations of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffGuarantor hereunder.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender may, without notice to the any Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorBorrowers) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower Borrowers or a the Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Loan Agreement (Comstock Homebuilding Companies, Inc.)
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligationsoccurs, any and all deposits (general or specificincluding all account balances, time or demand, whether provisional or final, regardless of currency, maturity, final and whether or the branch where such deposits are heldnot collected or available) and any other Indebtedness at any time held or other sums credited owing by or due from any Lender or any of its Affiliates to or for the Borrower credit or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower may be offset and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to toward the payment of the Note or Notes held by Obligations owing to such Lender (but excluding the Swing Loan Note) at any amount in excess of its ratable portion of the payments received by all of the Lenders with respect time prior to the Notes held by all of date that such Default has been fully cured, whether or not the LendersObligations, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part hereof, shall then be due, subject to Section 11.2, irrespective of whether or not such excess payment is thereafter recovered from Lender shall have made any demand under this Agreement and although such Lender, such disposition and arrangements shall Obligations may be rescinded and the amount restored unmatured. Notwithstanding anything to the extent of such recoverycontrary in this Section, but without interest. In the event that if any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.20 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, Lenders and (by) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any Guarantor and any securities or other property of the Borrower or the Guarantors any Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor the Guarantors (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors any Guarantor to such LenderLender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless Without limiting any other right of Lenders, upon the adequacy of any collateral, occurrence and during the continuance of any an Event of Default under §12.1(a) Default, the Agent or §12.1(b)any Lender, including in connection with any acceleration of the Obligationsat its sole election, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender may apply to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and Indebtedness any and all other liabilitiesproperty of any Borrower held by such Person in any capacity, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and may exercise a right of the Borrower or the Guarantors setoff against any monies owed to such LenderPerson by any Borrower. Each of the Lenders agrees with each other If any Lender that if such Lender shall receive from the Borrower or a Guarantorshall, whether by voluntary payment, exercise of the exercising any right of setoff, setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Loans, or participations in Letter of Credit Outstandings or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall retain purchase (for cash at face value) participations in the Term Loans, Revolving Loans and apply participations in Letter of Credit Outstandings and Swingline Loans of other Lenders to the payment extent necessary so that the benefit of all such payments shall be shared by the Note Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans; provided that (i) if any such participations are purchased and all or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderspayment giving rise thereto is recovered, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements participations shall be rescinded and the amount purchase price restored to the extent of such recovery, but without interest. In , and (ii) the event that provisions of this paragraph shall not be construed to apply to any Defaulting Lender shall exercise payment made by any such right of setoff, (a) all amounts so set off shall be paid over immediately Borrower pursuant to the Agent for further application and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letter of Credit Outstandings and Swingline Loans to any assignee or participant, other than to a Borrower or any Consolidated Subsidiary or Affiliate thereof (as to which the provisions of this Agreement and, pending such payment, paragraph shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly apply). Each Borrower consents to the Agent foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a statement describing in reasonable detail participation pursuant to the Obligations owing foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such Defaulting participation as fully as if such Lender as to which it exercised were a direct creditor of such right Borrower in the amount of setoffsuch participation.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Air Methods Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors Loan Parties and any securities or other property of the Borrower or the Guarantors Loan Parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor Loan Party (any such notice being expressly waived by the Borrower and each GuarantorLoan Parties) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the US_ACTIVE\121755035\V-6 right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Credit Agreement (GTJ Reit, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event If one or more Events of Default under §12.1(aas defined herein shall occur and be continuing, any Lender which is owed any obligation hereunder ("Depositary") or §12.1(bshall have the right, in addition to all other rights and remedies available to it, and is hereby authorized, to the extent permitted by applicable law, at any time and from time to time, without notice to the Company (any such notice being hereby expressly waived by the Company), including in connection with to set off and apply any acceleration of the Obligations, any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currency, maturity, ) at any time held and other indebtedness (whether or not then due and payable) at any time owing by the Depositary to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender mayCompany, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of the Company now existing or hereafter arisingexisting under this Agreement, irrespective of whether or not the Borrower or the Guarantors to Depositary shall have made any demand for satisfaction of such Lenderobligations and although such obligations may be unmatured. Each Depositary agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of the Lenders such setoff and application. The rights of each Depositary under this Section 13.03 are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Depositary may have hereunder or under any applicable law. Each Depositary agrees with each other Lender that (i) if it shall exercise any such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of banker's lien, setoff, counterclaim or otherwisesimilar right pursuant hereto, and shall retain and it will apply the proceeds thereof first to the payment of Loans outstanding hereunder and (ii) if it shall through the Note exercise of a right of banker's lien, setoff, counterclaim or Notes otherwise obtain payment of a proportion of the Loans held by such Lender (but excluding the Swing Loan Note) any amount it in excess of its ratable portion the proportion of the payments received by all Loans of each of the Lenders with respect other Depositaries being paid simultaneously, it shall be deemed to have simultaneously purchased from each other Depositary a participation in the Notes Loans owed to such other Depositaries so that the amount of unpaid Loans and participations therein held by all Depositaries shall be proportionate to the original principal amount of the Lenders, such Lender will make such disposition Loans held by them; and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect case it shall promptly remit to each such Depositary the amount of the Notes held by it participation thus deemed to have been purchased. The Company expressly consents to the foregoing arrangements, and in furtherance thereof, agrees that at such time as an Event of Default hereunder has occurred, the Administrative Agent shall provide to each Lender a schedule setting forth the Commitment of each Lender hereunder to permit each Lender to correctly determine the portion which its proportionate payment as contemplated by this Agreement; provided that if Commitment hereunder bears to the aggregate of all Commitments hereunder. If all or any part portion of any such excess payment is thereafter recovered from such Lenderthe Depositary which received the same, such disposition and arrangements the purchase provided for herein shall be deemed to have been rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Notwithstanding the foregoing, each Lender may separately waive in writing any right of setoff against the Obligations it has with respect to any deposit account of Borrower or REIT maintained with such Lender or any other account or property of Borrower or REIT held by such Lender; provided however, that this waiver is not intended, and shall not be deemed, to waive any right of setoff any Lender or Agent has with respect to any account required to be maintained pursuant to this Agreement or any other Loan Document.
Appears in 1 contract
Sources: Credit Agreement (NorthStar Healthcare Income, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or at any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, time may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness evidenced by the Note held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by such Note held by such Lender, and (b) if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Note held by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes Note held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dollar Tree Stores Inc)
Setoff. Regardless of the adequacy of any collateral, if any, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, whatever currency, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any Guarantor and any securities or other property of the Borrower or the Guarantors any Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each GuarantorGuarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors such Person to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a any Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Lenders to any of the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of a Borrower to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (ii) if such Lender shall receive from any of the Borrower or a GuarantorBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against any of the Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Credit Agreement (Ict Group Inc)
Setoff. Regardless Subject to the Subordination Agreement, regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any of its Subsidiaries and any securities or other property of the Borrower or the Guarantors any of its Subsidiaries in the possession of such any Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that that: (i) if an amount to be set off is to be applied to obligations of the Borrower or any of its Subsidiaries to such Lender, other than Obligations evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Obligations and to the Obligations evidenced by all such Notes held by such Lender and if such Lender shall receive from the Borrower or a Guarantorany of its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, or offset, enforcement of the claim evidenced by the Notes held by such Lender by proceeding against the Borrower or any of its Subsidiaries at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition dispositions and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claimsclaim, subrogation or otherwise as or shall result in each Lender receiving in respect on account of the Note or Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided provided, that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Subordinated Loan Agreement (Cyalume Technologies Holdings, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) Collateral or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to upon the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval consent of the AgentMajority Lenders, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender at any time after the occurrence and during the continuance of any Event of Default. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lender, and (b) if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross-action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto tanto, assignment of claims, subrogation subrogation, or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy Lenders provided by law, subject to any notice or other requirement contained in the DIP Financing Orders and after complying with the notice provisions of any collateralthe Interim Order or the Final Order, upon the occurrence and during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration and the making of the Obligationsrequest or the granting of the consent specified by Section 8.02 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 8.02, each Lender and each of its Affiliates is authorized at any time and from time to time, without (i) further order of or application to the Bankruptcy Court and (ii) prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off respective Loan Parties against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Administrative Agent, the Collateral Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness. Each Lender agrees promptly to which it exercised notify the Borrower and the Administrative Agent after any such right setoff and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, the Collateral Agent and each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent, the Collateral Agent, such Lender and their respective Affiliates may have.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Us Airways Group Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any the Lender or the Collateral Agent to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such the Lender may, without notice to or the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Collateral Agent may be applied to or set off against the payment of Obligations Liabilities and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to the Lender or the Guarantors to such LenderCollateral Agent. Each of The Collateral Agent and the Lenders agrees Lender agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to the Collateral Agent or the Lender, other than Indebtedness evidenced by the Loan Documents, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Loan Documents, and (b) if the Collateral Agent or the Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Loan Documents by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) Liabilities any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to other under the Notes held by all of the LendersLoan Documents, such Lender Person will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it Liabilities its proportionate propor tionate payment as contemplated by this Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such LenderPerson, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Line of Credit Agreement (Toymax International Inc)
Setoff. Regardless of the adequacy of any collateralCollateral and without demand or notice, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits in any account (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where at which such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors held in the possession of such Lender may, without notice to the Borrower Agent or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, a Bank may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderObligations. Each of the Lenders Banks agrees with each other Lender Bank that (a) if pursuant to any agreement between such Bank and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such Bank, other than with respect to the Obligations, such amount shall be applied ratably to such other Indebtedness and to the Obligations, and (b) if such Lender Bank shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Obligations by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Revolving Credit Note or Revolving Credit Notes held by such Lender (but excluding the Swing Loan Note) Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Revolving Credit Notes held by all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise otherwise, as shall result in each Lender Bank receiving in respect of the Revolving Credit Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In Notwithstanding the event that any Defaulting Lender foregoing, no Bank shall exercise any such a right of setoffsetoff if such exercise would limit or prevent the exercise of any other remedy, (a) all amounts so set off shall be paid over immediately right to Collateral or other recourse against the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffBorrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Grove Real Estate Asset Trust)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors Guarantor and any securities or other property of the Borrower or the Guarantors Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Revolving Credit Agreement (Wellsford Real Properties Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Lenders to the Borrower or the Guarantors Borrowers and any securities or other property of the Borrower or the Guarantors Borrowers in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Borrowers to such Lender. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrowers to such Lender, other than Indebtedness evidenced by the Notes or Bankers' Acceptances held by such Lender (including the Swing Line Note), or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes or Bankers' Acceptances held by such Lender (including the Swing Line Note) or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower or a Guarantorany Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes or Bankers' Acceptances held by, or constituting Reimbursement Obligations owed to, such Lender (including the Swing Line Note) by proceedings against such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note Notes or Notes Bankers' Acceptances held by by, or Reimbursement Obligations owed to, such Lender (but excluding including the Swing Loan Line Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes or Bankers' Acceptances held by by, and Reimbursement Obligations owed to, all of the LendersLenders (including the Swing Line Note), such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes or Bankers' Acceptances held by it (including the Swing Line Note) or Reimbursement obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings Inc)
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of any collateralLenders under applicable law, during if Parent or the continuance of any Event of Default under §12.1(a) or §12.1(b)Borrower becomes insolvent, including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturityhowever evidenced, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender mayDefault occurs, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other liabilities, direct, Indebtedness at any time held or indirect, absolute owing by any Lender or contingent, due any of its Affiliates to or to become due, now existing for the credit or hereafter arising, account of Parent or the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, may be offset and shall retain and apply to applied toward the payment of the Note or Notes held by Obligations owing to such Lender (but excluding the Swing Loan Note) at any amount in excess of its ratable portion of the payments received by all of the Lenders with respect time prior to the Notes held by all of date that such Default has been fully cured, whether or not the LendersObligations, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part hereof, shall then be due, subject to Section 11.2, irrespective of whether or not such excess payment is thereafter recovered from Lender shall have made any demand under this Agreement and although such Lender, such disposition and arrangements shall Obligations may be rescinded and the amount restored unmatured. Notwithstanding anything to the extent of such recoverycontrary in this Section, but without interest. In the event that if any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.20 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, Lenders and (by) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b)Default, including in connection with any acceleration of to the Obligationsextent permitted by applicable law, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the AgentRequired Lenders, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorGuarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Swingline Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any collateralLenders provided by law, during the continuance of any if an Event of Default under §12.1(a) or §12.1(b)exists, including in connection with each Lender is authorized at any acceleration of time and from time to time, without prior notice to the ObligationsBorrowers, any such notice being waived by the Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing to, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off Borrowers against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender, now or hereafter existing, irrespective of whether or not the Agent or such Lender as shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Each Lender agrees promptly to which it exercised notify the Borrowers and the Agent after any such right setoff and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 10.09 are in addition to the other rights and remedies (including other rights of setoff) which the Lender may have. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE, OR ATTEMPT TO EXERCISE, ANY RIGHT OF SETOFF, BANKER'S LIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE BORROWERS OR ANY SUBSIDIARY OF THE BORROWERS HELD OR MAINTAINED BY THE LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAJORITY LENDERS.
Appears in 1 contract
Setoff. Regardless If one or more Events of Default as defined herein shall occur, any Bank or commercial bank which is owed any obligation hereunder (a "Depositary") shall have the adequacy of right, in addition to all other rights and remedies available to it, and is hereby authorized, to the extent permitted by applicable law, at any collateraltime and from time to time, during the continuance of any such Event of Default under §12.1(a) or §12.1(bwithout notice to the Company (any such notice being hereby expressly waived by the Company), including in connection with to setoff and apply any acceleration of the Obligations, any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currency, maturity, ) at any time held and other indebtedness (whether or not then due and payable) at any time owing by the Depositary to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property account of the Borrower Company, against any of or all the Guarantors in Obligations of the possession Company now or hereafter existing under this Agreement irrespective of whether or not the Depositary shall have made any demand for satisfaction of such Lender may, without notice Obligations and although such Obligations may be unmatured. Each Depositary agrees to notify the Borrower or any Guarantor (Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice being expressly waived by shall not affect the Borrower validity of such setoff and application. The rights of each Guarantor) but with the prior written approval Depositary under this Section are in addition to other rights and remedies (including other rights of the Agent, be applied to setoff which such Depositary may have hereunder or set off against the payment of Obligations and under any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lenderapplicable law). Each of the Lenders Depositary agrees with each other Lender that (i) if it shall exercise any such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of banker's lien, setoff, counterclaim or otherwisesimilar right pursuant hereto, and shall retain and it will apply the proceeds thereof to the payment of Loans outstanding hereunder and (ii) if it shall through the Note exercise of a right of banker's lien, setoff, counterclaim or Notes otherwise obtain payment of a proportion of the Loans held by such Lender (but excluding the Swing Loan Note) any amount it in excess of its ratable portion the proportion of the payments received by all Loans of each of the Lenders with respect other Depositaries being paid simultaneously, it shall be deemed to have simultaneously purchased from each other Depositary a participation in the Notes Loans owed to such other Depositaries so that the amount of unpaid Loans and participations therein held by all Depositaries shall be proportionate to the original principal amount of the LendersLoans owed to them, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect case it shall promptly remit to each such Depositary the amount of the Notes held by it participation thus deemed to have been purchased. The Company expressly consents to the foregoing arrangements, and in furtherance thereof, agrees that at such time as an Event of Default hereunder has occurred, the Administrative Agent shall provide to each Bank a schedule setting forth the Commitment of each Bank hereunder to permit each Bank to correctly determine the portion which its proportionate payment as contemplated by this Agreement; provided that if Commitment hereunder bears to the aggregate of all Commitments hereunder. If all or any part portion of any such excess payment is thereafter recovered from such Lenderthe Depositary which received the same, such disposition and arrangements the purchase provided for herein shall be deemed to have been rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Credit Agreement (Cox Radio Inc)
Setoff. Regardless Whenever an Event of Default shall have occurred and be continuing, the Company hereby irrevocably authorizes each Lender to set off the Obligations owed to it (including, without limitation, any participation in the Obligations of other Lenders purchased pursuant to Section 7.10 or 7.11) against all deposits and credits of the Company with, and any and all claims of the Company related to this Agreement against, such Lender; provided, however, that no Lender may set off against any payment or delivery obligation of such Lender to the Company pursuant to the terms of any transaction evidenced by (a) the Uncollared Accelerated Stock Buyback transaction dated June 26, 2007 between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. or (b) the Collared Accelerated Stock Buyback transaction dated June 26, 2007 between the Company and ▇▇▇▇▇▇▇ Sachs & Co. Such right shall exist whether or not the Agent shall have made any demand hereunder or under any other Loan Document, whether or not such indebtedness, or any part thereof, or deposits and credits held for the account of the Company is or are matured or unmatured, and regardless of the existence or adequacy of any collateral, during guaranty or any other security, right or remedy available to the continuance Lenders. Each Lender agrees that, as promptly as is reasonably possible after the exercise of any Event of Default under §12.1(a) or §12.1(b)such setoff right, including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender it shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of notify the Agent and the LendersCompany of its exercise of such setoff right; provided, however, that the failure of any Lender to provide such notice shall not affect the validity of the exercise of such setoff rights. Nothing in this Agreement shall be deemed a waiver or prohibition of or restriction on any rights of banker’s lien, setoff and (b) such Defaulting counterclaim available to any Lender shall provide promptly pursuant to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setofflaw.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any collateralLenders provided by law, during the continuance of any if a Guarantor Event of Default exists, then irrespective of whether the Agent or such Lender shall have made demand under §12.1(a) this Guaranty and whether such obligations may be contingent or §12.1(b)unmatured, including each Lender is authorized at any time and from time to time, without prior notice to any Guarantor, any such notice being hereby waived to the fullest extent permitted by law, to place a hold (in connection with any acceleration the full amount of the Obligations, Guarantied Indebtedness) against any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from at any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes time held by such Lender (but excluding to or for the Swing Loan Notecredit or the account of such Guarantor and, provided that Guarantor shall then be obligated to pay all sums due and owing on the Guarantied Indebtedness in accordance with Section 2.01(b) hereof, to set off and apply any amount in excess of its ratable portion of the payments received by and all of the Lenders with respect such deposits and other indebtedness at any time owing to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with to or for the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation credit or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part account of such excess payment is thereafter recovered from Guarantor against any and all obligations owing to such Lender, such disposition and arrangements shall be rescinded now or hereafter existing. Each Lender agrees to promptly notify the affected Guarantor and the amount restored Agent after any such hold, setoff or application made by such Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 10.09 are in addition to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right other rights and remedies (including other rights of setoff) that such Lender may have. NOTWITHSTANDING THE FOREGOING, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement andNO LENDER SHALL EXERCISE, pending such paymentOR ATTEMPT TO EXERCISE, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the LendersANY RIGHT OF SETOFF, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffBANKER'S LIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF ANY GUARANTOR HELD OR MAINTAINED BY ANY LENDER, WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUISITE LENDERS.
Appears in 1 contract
Sources: Payment Guaranty (Apartment Investment & Management Co)
Setoff. Regardless of the adequacy of any collateral, during the ------ continuance of any an Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks to the Borrower Company (but excluding accounts held by the investment group of FNBB or any affiliate of FNBB, for investment services provided to the Guarantors Company) and any securities or other property of the Borrower or the Guarantors Company in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Bank may be applied to or set off against the payment of Obligations obligations of the Company hereunder, or under the Notes and any and all other liabilities, direct, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors Company to such LenderBank. Each Bank agrees with the other Banks that (i) if an amount to be set off is to be applied to Indebtedness of the Lenders agrees with each Company to a Bank, other Lender that than Indebtedness evidenced by the Notes held by all of the Banks, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes, and (ii) if such Lender a Bank shall receive from the Borrower or a GuarantorCompany, whether by voluntary payment, exercise of the right of setoffset-off, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by a Bank by proceedings against the Company at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) a Bank any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or --- ----- otherwise as shall result in each Lender receiving Bank receiving, in respect of the Notes held by it it, its proportionate payment as contemplated by this Agreement; provided provided, --------- however, that if all or any part of such excess payment is thereafter recovered ------- from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Sterling Commerce Inc)
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors any Guarantor and any securities or other property of the Borrower or the Guarantors any Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor the Guarantors (any such notice being expressly waived by the Borrower and each Guarantorthe Guarantors) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors any Guarantor to such Lender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ Fargo Bank, National Association, if it is a Lender, shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless (a) Notwithstanding anything to the contrary contained in this Agreement, subject to the limitations set forth in this Section 7.05 and in Section 7.06, with respect to any US Working Capital Shortfall or Canadian Working Capital Shortfall required under Section 2.04(f) to be paid by Seller to Buyer or any payment required under this Article VII to be made by Seller to any Buyer Indemnified Person for any indemnification claim (together with interest thereon (if any) and all costs and expenses related thereto with respect to which any Buyer Indemnified Person is entitled to recover under the provisions of the adequacy of any collateralthis Agreement, during the continuance of any Event of Default under §12.1(a) or §12.1(ba “Seller Payment”), including Buyer shall have the right, in connection with any acceleration of Buyer’s sole discretion, to satisfy the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession amount of such Lender maySeller Payment by set-off, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower offset, and each Guarantor) but with the prior written approval reduction of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, amounts then due or to be become duedue to Seller under this Agreement or any other Transaction Document, now existing including the Escrow Amount, the Earn-Out Amount, or hereafter arisingany other payment stream, agreement or obligation of any kind or nature whatsoever, subject to the Borrower or the Guarantors to such Lender. Each requirements of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, applicable Laws.
(b) Buyer may only exercise of the right of setoff, set-off provided in this Article VII in respect of claims relating to Losses actually incurred by Buyer (in which case the amount of such set-off shall be the amount of such actual Losses) or claims actually asserted by a third Person (in which case the amount of the set-off shall not exceed the Buyer’s good faith estimate of the amount of indemnifiable Losses that will ultimately be payable to Buyer in respect of such claims). If any such claims for indemnity are resolved in favor of Sellers by mutual agreement or otherwise, and shall retain and apply or if the amount set-off exceeds the amount ultimately payable to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving Buyer in respect of such claim, Buyer shall pay to the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part Seller the excess of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestset-off amount. In the event that any Defaulting Lender the amount set-off by Buyer is equal to or greater than 25% of the amount ultimately payable to Buyer in respect of such claim, then Buyer shall also pay to Seller interest at a rate of 6% per annum on such excess amount, such interest to accrue from the date on which such set-off amount would have been paid to the Seller but for the claim in question. Neither the exercise any of nor the failure to exercise such right of setoffsetoff or offset will constitute an election of remedies or limit any Buyer Indemnified Person in any manner in the enforcement of any other remedies that may be available to any Buyer Indemnified Person.
(c) Notwithstanding the survival periods set forth in Section 7.04, if Buyer provides a notice of a claim seeking indemnification with respect to any actual or alleged Loss prior to the expiration of the applicable time period set forth in Section 7.04, Buyer shall be entitled to satisfy any set-off amount pursuant to this Section 7.05 by reduction and set-off from any amounts to be paid to Seller after the expiration of the applicable time periods set forth in Section 7.04.
(ad) To the extent not set-off against the Earn-Out Amount, Buyer and Seller agree that any Seller Payment, including all amounts so set off determined as payable as a result of any claim by a Buyer Indemnified Person for indemnification under this Article VII, shall be paid over immediately to first with the Agent for further application Escrow Amount in accordance with the provisions of this Agreement and, pending Escrow Agreement. Seller further acknowledges and agrees that it shall instruct the Escrow Agent to pay such amounts to Buyer from the Escrow Amount and to take all other actions reasonably necessary to cause Escrow Agent to make any such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wayside Technology Group, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors Guarantor and any securities or other property of the Borrower or the Guarantors Guarantor in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors such Person to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Borrower or the Guarantors any Credit Party and any securities or other property of the Borrower or the Guarantors such parties in the possession of such Lender or any Affiliate may, without notice to the Borrower or any Guarantor Credit Party (any such notice being expressly waived by the Borrower and each Guarantorwaived) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderCredit Parties. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorCredit Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffAGENT A STATEMENT DESCRIBING IN REASONABLE DETAIL THE OBLIGATIONS OWING TO SUCH DEFAULTING LENDER AS TO WHICH IT EXERCISED SUCH RIGHT OF SETOFF.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees agree with each other Lender that if such Lender shall receive from the Borrower or a Guarantorthe Guarantors, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy Lender provided by law, upon the occurrence of any collateral, during the continuance of any an Event of Default under §12.1(a) or §12.1(b), including and acceleration of the Obligations owing in connection with this Agreement, the Lender shall have the right, without prior notice to any acceleration of the Obligations, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower Borrowers or any Guarantor (other Person, any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the AgentBorrowers to the extent permitted by applicable law, be applied to setoff and apply against any Indebtedness, whether matured or unmatured, of any of the Borrowers or any Subsidiary of any of the Borrowers, if any, to the Lender, any amount held by or owing from the Lender to or set off against for the payment credit or the account of Obligations and such Borrower or any and all such Subsidiary of such Borrower, if any (other liabilities, directthan accounts for payroll or employee withholding taxes) at, or indirectat any time after, absolute the happening of any of the above mentioned events, and the aforesaid right of setoff may be exercised by such Lender against any of the Borrowers or contingentany Subsidiary, due or to become due, now existing or hereafter arisingif any, of such Borrower, or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, custodian or execution, judgment or attachment creditor of such Borrower or against anyone else claiming through or against such Borrower or such trustee in bankruptcy, debtor in possession, assignee for the Guarantors benefit of creditors, receiver, custodian or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by the Lender prior to the making, filing or issuance of, or service upon the Lender, or of notice of, any such petition, assignment for the benefit of creditors; appointment or application for the appointment of a receiver; or issuance of execution, subpoena, order or warrant. The Lender agrees promptly to notify the Borrowers (by means of a single notice to CheckFree), after any such setoff and application made by the Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application. Each of Notwithstanding anything contained herein to the Lenders agrees with each other Lender that if such contrary, the Lender shall receive from the Borrower or a Guarantor, whether by voluntary payment, exercise of the have no right of setoffset-off, at common law, contractual, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) at any amount in excess of its ratable portion of the payments received by all of the Lenders time with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSpecial Account.
Appears in 1 contract
Setoff. Regardless of Each Lender, Swingline Bank and LC Issuing Bank may at any time upon or after the adequacy of any collateral, occurrence and during the continuance of any an Event of Default under §12.1(a) or §12.1(b)Default, including in connection with any acceleration and without notice to the Borrower, set-off against the Obligations of the Obligations, Borrower under this Agreement the whole or any portion or portions of any or all deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or and other sums credited by or due from any Lender such Lender, Swingline Bank or LC Issuing Bank to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice subject to the Borrower or any Guarantor (any such notice being expressly waived withdrawal by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note not any other Person or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this AgreementPersons could also withdraw money therefrom; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the LC Issuing Banks, the Swingline Banks and the Lenders, and (by) such the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations obligations owing to such Defaulting Lender pursuant to this Agreement as to which it exercised such right of setoff. The rights of each Lender, Swingline Bank and LC Issuing Bank under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or LC Issuing Bank may have in law or in equity. Each Lender, Swingline Bank and LC Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Sources: Credit Agreement (American Water Works Company, Inc.)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default under §12.1(a) or §12.1(b), including in connection with any acceleration of the ObligationsDefault, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender of the Banks to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, Bank may be applied to or set off by such Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower or the Guarantors to such LenderBank. Each of the Lenders Banks agrees with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by the Note held by such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by the Note held by such Bank, and (b) if such Lender Bank shall receive from the Borrower or a GuarantorBorrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Note held by such Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes Note held by it its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Sources: Revolving Credit Agreement (Freedom Securiteis Corp /De/)