Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: (i) monies, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTOR.
Appears in 5 contracts
Sources: Guaranty Agreement (Altisource Residential Corp), Limited Guaranty Agreement (Altisource Residential Corp), Guaranty Agreement (Altisource Residential Corp)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, 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 Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held 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 as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to 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.
Appears in 5 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 Term Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Term Notes held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Term 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 Term Note or Term Notes held by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Term 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 Term Notes held by it as contemplated by this Loan 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.
Appears in 4 contracts
Sources: Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of any Lender may be applied to or set off by such Lenders against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, each Affiliate 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 Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, such Lenders any amount becoming due 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 Lenders will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor 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 Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 4 contracts
Sources: Subordination Agreement (BTHC VII Inc), Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc), Subordination Agreement (Whitehall Jewelers Holdings, Inc.)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans 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 or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to or participations in Swing Line Loans 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, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans 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 or Reimbursement Obligations owed it, or participations in Swing Line Loans held by 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.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligations, a right adequacy of set-off upon any and all cash collateral for Letters of the following: (i) monies, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or finalCredit described in Sections 4.2(b) and credits(c) hereof, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon following the occurrence and during the continuation of an Event of Default, without notice Guarantor any deposits or other sums credited by or due from any of the Lenders to the Borrower in the possession of such Lender may be applied to or set off against the payment of Obligations of the Borrower to such Lender. Each of the Lenders agree 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 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 Credit Agreement; provided that if all or any Affiliate part of Guarantorsuch excess payment is thereafter recovered from such Lender, any such notice being expressly waived by Guarantor disposition and each Affiliate of Guarantor arrangements shall be rescinded and the amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase ObligationsLender, a continuing lien, security interest and right of set-off setoff as security for all liabilities and obligations to such Lender hereunder, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledge, transmission, collection safekeeping or otherwise, (ii) control of such Lender or in transit to it. At any and all deposits (general, specified, special, time, demand, provisional without demand or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, notice (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to Borrower), any Lender may, WITH THE PRIOR APPROVAL OF THE AGENT, setoff the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer same or any Indemnified Person by Guarantor part thereof and apply the same to any liability or any Affiliate obligation of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents Borrower hereunder even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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, 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 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. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower.
Appears in 3 contracts
Sources: Unsecured Revolving Credit Agreement (Amerivest Properties Inc), Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Setoff. In addition Borrower hereby grants to any rights the Administrative Agent and each Lender and Interest Rate Hedge Counterparty a continuing lien, security interest and right of setoff as security for all Obligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase ObligationsAdministrative Agent, a right such Lender (or any Lender Affiliate) and such Interest Rate Hedge Counterparty and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any such Secured Party to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate Borrower in the possession of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Secured Party may be applied to or for set off by such Lender against the credit payment of Guarantor or Obligations, subject to Section 4.4; provided, that in the event that any Affiliate of Guarantor, without prejudice to Buyer’s right to recover Defaulting Lender will exercise any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-setoff, (a) all amounts so set off against any will be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 15.13 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate deemed held in trust for the benefit of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer Administrative Agent and the other Indemnified Persons Lenders, and (b) the Defaulting Lender will provide promptly to Administrative Agent a statement describing in reasonable detail the full amount of all amounts Obligations owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates such Defaulting Lender as to which it exercised such right of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for abovesetoff. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY SECURED PARTY TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED.
Appears in 2 contracts
Sources: Credit Agreement (Textainer Group Holdings LTD), Credit Agreement (Textainer Group Holdings LTD)
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself Obligor and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor such Obligor in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Obligor to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Obligors to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any Obligor, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against such Obligor at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 2 contracts
Sources: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 owed to 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 owed to such Lender, and (b) if such Lender shall receive from the Borrower, 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 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 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.
Appears in 2 contracts
Sources: Credit Agreement (Safety Insurance Group Inc), Revolving Credit Agreement (Safety Insurance Group Inc)
Setoff. In addition The Borrowers hereby grant to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any of the Borrowers and any securities or other property of Guarantor any of the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any of the Borrowers to such Lender, other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any of the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lender 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 or Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 2 contracts
Sources: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender or such Subsidiary of the holding company owning such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by this Credit Agreement owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of Buyer credit) and each Indemnified Person is hereby authorized upon to the Indebtedness evidenced by this Credit Agreement owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement owed to 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 Obligations held by such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made by all of the Lenders, such Lender will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Loans made by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 2 contracts
Sources: Credit Agreement (Staples Inc), Credit Agreement (Staples Inc)
Setoff. In addition Borrower hereby grants to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself Agent and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase ObligationsLenders, a continuing lien, security interest and right of set-off setoff as security for all Obligations of Borrower to Agent and the Lenders, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of Agent or any Lender or any entity under the control of Fleet National Bank and its successors and assigns, transmissionor in transit to any of them. If any payment is not made when due hereunder or under any of the Loan Documents, collection after giving regard to applicable grace periods, if any, or if any Event of Default or other event which would entitle Agent or any of the Lenders to accelerate the Loan occurs, the same or any part thereof may to the fullest extent not prohibited by applicable law at any time or from time to time, without regard to the existence, sufficiency or adequacy of any other collateral, and without notice or compliance with any other condition precedent now or hereafter imposed by statute, rule of law or otherwise, (ii) any and all deposits (generalof which are hereby waived, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-be set off, appropriate, apply appropriated and enforce such right of set-off applied by Agent or a Lender against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate Obligation of Guarantor under the Repurchase Documents and the Repurchase Obligations, Borrower irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person demand shall have been made and although such Obligations may be unmatured, in such manner as Agent in its sole and absolute discretion may determine. Within five (5) Business Days of making any demand under such set off, appropriation or application, Agent agrees to notify Borrower thereof, provided the Repurchase Documents and regardless failure to give such notice shall not affect the validity of any other collateral securing such amounts, and in all cases without waiver set off or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveappropriation or application. ANY AND ALL RIGHTS TO REQUIRE BUYER AGENT OR OTHER INDEMNIFIED PERSONS LENDERS TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSLOAN, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED.
Appears in 2 contracts
Sources: Loan Agreement (Kramont Realty Trust), Swingline Note (Kramont Realty Trust)
Setoff. In addition The Borrower hereby grant to any rights each Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to each Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements custody, safekeeping or control of Law such Agent or otherwise, Guarantor, on behalf such Lender or any Lender Affiliate and their successors and assigns or in transit to any of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment them. Regardless of the Repurchase Obligationsadequacy of any Collateral, a right of set-off upon if any and all of the following: (i) moniesObligations are due and payable and have not been paid or any Event of Default shall have occurred, securities, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 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 (ii) if such Lender shall receive from the Borrower, 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 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 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.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender or such Subsidiary of the holding company owning such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of Buyer credit) and each Indemnified Person is hereby authorized upon to the Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Credit Agreement, or constituting Reimbursement Obligations owed to, 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 Obligations held by such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made by, and payable 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 Guarantor way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Loans made by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Staples Inc), Revolving Credit Agreement (Staples Inc)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to Borrower and any securities or other property of Guarantor Borrower in the possession of such Lender may be applied to or set off by the Administrative Agent against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, ARE CREDITS OR OTHER PROPERTY OF THE BORROWER IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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, 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, 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 arrangements with the Administrative Agent and the other Lenders with respect to such excess in accordance with the provisions of Section 4.6.
Appears in 2 contracts
Sources: Credit Agreement (TAL International Group, Inc.), Credit Agreement (TAL International Group, Inc.)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, ARE CREDITS OR OTHER PROPERTY OF THE BORROWER IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to or participations in Swing Line Loans 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans 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 Revolving Credit Notes held by it or Reimbursement Obligations owed it, or participations in Swing Line Loans held by 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. Each Lender shall notify the Administrative Agent of any exercise of any setoff pursuant to this Section 16.1.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CAI International, Inc.), Revolving Credit Agreement (CAI International, Inc.)
Setoff. In addition Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by the Administrative Agent against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit 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, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit 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, any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by all of the Lenders, such Lender will make arrangements with the Administrative Agent and the other Lenders with respect to such excess in accordance with the provisions of Section 4.5.
Appears in 2 contracts
Sources: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (Seacastle Inc.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of the following: Default, (i) monies, securities, collateral any deposits or other sums credited by or due from any of the Lenders or the Agent to any of the Domestic Borrowers and any securities or other property of Guarantor any of the Domestic Borrowers in the possession of such Lender or the Agent may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of any of the currency, place of payment Domestic Borrowers to such Lender and (ii) any deposits or booking office other sums credited by or due from any of the amount Canadian Lenders or obligation the Agent to the Canadian Borrower and any securities or other property of the Canadian Borrower in each case at any time held the possession of such Canadian Lender or owing by Buyer, any Affiliate of Buyer or any Indemnified Person the Agent may be applied to or for set off by such Canadian Lender against the credit payment of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer Obligations and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred other liabilities, direct, or indirect, absolute or contingent, due or to against any amounts owing become due, now existing or hereafter arising, of the Canadian Borrower to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveCanadian Lender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any of the Borrowers to such Lender, other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any of the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or Reimbursement Obligations owed to such Lender 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 or Notes held by, or Reimbursement Obligations owed to such Lender 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 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.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Dave & Busters Inc), Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Setoff. In addition Each of the Borrowers hereby grants to any rights the Administrative Agent and each of the Lenders a right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all its deposits (excluding payroll, benefits and other trust accounts), credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrowers and any securities or other property of Guarantor the Borrowers in the possession of such Lender may, without prior notice to any Borrower, be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 2 contracts
Sources: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the Repurchase Documentsoccurrence of, Requirements and throughout the continuance of, any Event of Law or otherwiseDefault, Guarantoreach Lender, on behalf of itself each Issuing Bank and the Swingline Lender and each subsequent holder of its Affiliates (excluding in this Section 20 any Affiliate that Note is a Variable Interest Entity)hereby authorized by the Borrowers at any time or from time to time, hereby grants without prior notice to Buyer and each Indemnified the Borrower or any other Person, any such prior notice being hereby expressly waived, to secure repayment of the Repurchase Obligations, a right of set-set off upon any and all of the following: (i) monies, securities, collateral or other property of Guarantor to appropriate and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) to apply any and all deposits (general, specified, general or special, timeincluding, demandbut not limited to, provisional or final) and creditsIndebtedness evidenced by certificates of deposit, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or but not arising under the Repurchase Documents and irrespective of the currencyincluding trust accounts, place of payment or booking office of the amount or obligation and in each case whatever currency denominated) and any other Indebtedness at any time held or owing by Buyerthat Lender, any Affiliate of Buyer the Swingline Lender or any Indemnified Person that Issuing Bank or that subsequent holder to or for the credit or the account of Guarantor a Borrower, whether or any Affiliate not matured, against and on account of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming the due and payable by Guarantor unpaid obligations and liabilities of such Borrower to that Lender, the Swingline Lender or any Affiliate of Guarantor to Buyer that Issuing Bank or any Indemnified Person that subsequent holder under the Repurchase Credit Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyeror not that Lender, any Affiliate of Buyer the Swingline Lender or any Indemnified Person that Issuing Bank or that subsequent holder shall have made any demand under hereunder. Each Lender, the Repurchase Documents and regardless Swingline Lender or each Issuing Bank shall promptly give notice to the Company of any action taken by it under this Section 10.6, provided that any failure of such Lender, the Swingline Lender or such Issuing Bank to give such notice to the Company shall not affect the validity of such setoff. Each Lender, the Swingline Lender and each Issuing Bank agrees with each other collateral securing Lender, the Swingline Lender and each other Issuing Bank a party hereto that if such amountsLender, the Swingline Lender or such Issuing Bank receives and retains any payment, whether by setoff or application of deposit balances or otherwise, in respect of the Loans or L/C Obligations in excess of its ratable share of payments on all such Obligations then owed to the Lenders, the Swingline Lender and the Issuing Banks hereunder, then such Lender, the Swingline Lender or such Issuing Bank shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders such amount of the Loans and L/C Obligations and participations therein held by each such other Lender, Swingline Lender or Issuing Bank as shall be necessary to cause such Lender, Swingline Lender or such Issuing Bank to share such excess payment ratably with all the other Lenders, the Swingline Lender and the Issuing Banks; provided, however, that if any such purchase is made by any Lender, Swingline Lender or any Issuing Bank, and in all cases without waiver if such excess payment or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor part thereof is thereafter recovered from such purchasing Lender, Swingline Lender or Issuing Bank, the related purchases from the other Lenders, Swingline Lender or the Issuing Banks shall be deemed directly indebted to Buyer rescinded ratably and the other Indemnified Persons purchase price restored as to the portion of such excess payment so recovered, but without interest; provided further, that in the full amount event that any Defaulting Lender 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 2.19 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 (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates such Defaulting Lender as to which it exercised such right of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORsetoff.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Noble Corp / Switzerland), Revolving Credit Agreement (Noble Corp / Switzerland)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligations, a right adequacy of set-off upon any and all cash collateral for Letters of the following: (i) monies, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or finalCredit described in Sections 4.2(b) and credits(c) hereof, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon following the occurrence and during the continuation of an Event of Default, without notice Guarantor any deposits or other sums credited by or due from any of the Lenders to the Borrower in the possession of such Lender may be applied to or set off against the payment of Obligations of the Borrower to such Lender. Each of the Lenders agree 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 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantorsuch excess payment is thereafter recovered from such Lender, any such notice being expressly waived by Guarantor disposition and each Affiliate of Guarantor arrangements shall be rescinded and the amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right of set-off upon if any and all of the following: (i) moniesObligations are due and payable and have not been paid or any Event of Default shall have occurred, securities, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingBorrower in the possession of such Lender may be applied to or set off by such Lender without further notice to the Borrower against the payment of Obligations whether direct, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of Borrower to such Lender; provided however that such Lender shall advise the amount or obligation Borrower and in each case at the Administrative Agent promptly after making any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person set off; provided that failure to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any give such notice being expressly waived by Guarantor shall not affect the validity of such setoff, and each Affiliate of Guarantor to provided, further, that in the extent permitted by event that any Requirements of Law, to set-off, appropriate, apply and enforce Defaulting Lender shall exercise any such right of set-setoff, (x) all amounts so set off against any shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of §2.13 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and all items hereinabove referred deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to against any amounts the Administrative Agent a statement describing in reasonable detail the Obligations owing to Buyer or any Indemnified Person by Guarantor or any Affiliate such Defaulting Lender as to which it exercised such right of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for abovesetoff. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender that if any Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim constituting the Obligations owed to 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 such amount to the payment of the Obligations owed to such Lender in excess of its ratable portion of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the 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.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon Borrowers and any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from any of Buyer the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition Each of the Borrowers hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any Borrower and any securities or other property of Guarantor any Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective of the currencyhereafter arising, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing Borrower to such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTOR.WAIVED. Each of the Lenders agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of any Borrower to such Lender, other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Furrs Restaurant Group Inc)
Setoff. In addition Regardless of the adequacy of any collateral for the Obligations, any deposits or other sums credited by or due from any of the Banks to the Borrower or the Guarantors may be applied to or set off following an Event of Default against any rights now principal, interest and any other amounts due from the Borrower or hereafter granted under either the Repurchase DocumentsGuarantors to the Banks at any time without notice to the Borrower or the Guarantors, Requirements of Law or compliance with any other procedure imposed by statute or otherwise, Guarantorall of which are hereby expressly waived by the Borrower and the Guarantors. Each of the Banks agrees with each other Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Bank, on behalf other than Indebtedness evidenced by the Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of itself the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed 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 each shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Bank any amount in excess of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment ratable portion of the Repurchase Obligations, a right of set-off upon any and payments received by all of the following: (i) moniesBanks with respect to the Notes held by, securitiesand Reimbursement Obligations owed to, collateral all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, --- ----- subrogation or other property otherwise as shall result in each Bank receiving in respect of Guarantor and the Notes held by it or Reimbursement obligations owed it, its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received proportionate payment as contemplated by Buyer, any Affiliate of Buyer this Agreement; provided that if all or any Indemnified Personpart of -------- such excess payment is thereafter recovered from such Bank, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any such disposition and all deposits (general, specified, special, time, demand, provisional or final) arrangements shall be rescinded and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the ------ continuance of set-off upon an Event of Default, any deposits or other sums credited by or due from the Lenders to the Borrower and all of the following: (i) monies, securities, collateral any securities or other property of Guarantor the Borrower in the possession of the Lenders may, with the prior written consent of the Managing Agent, be applied to or set off against the payment of the Obligations hereunder and its respective Affiliates under any Note and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of Borrower to the amount or obligation Lenders and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencyAgents. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)
Setoff. In addition The Borrower hereby grants to any rights the Agent and each of the Banks a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Agent and each Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Agent or such Bank or any Bank Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Banks to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Bank may be applied to or set off by such Bank against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agree with each other 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 Revolving Credit Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Revolving Credit Notes held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank receiving in respect of the Revolving Credit Notes held by it 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), The Borrower hereby grants to Buyer the Bank a lien, security interest and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off setoff as security for all liabilities and obligations to the Bank, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of the Bank or any entity under the control of FleetBoston Financial Corporation and its successors and assigns, transmissionor in transit to any of them (collectively, collection or otherwisethe "Deposits"). In addition to the Bank's common law setoff rights and not in limitation thereof, (ii) at any and all deposits (general, specified, special, time, demandwithout demand or notice, provisional or final) and credits, claims or Indebtedness of Guarantor the Bank may set off the same or any Affiliate Guarantor at part thereof and apply the same to any time existing, (iii) any liability or obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office Borrower even though unmatured and regardless of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS THE BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSLOAN, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Such right of debit may be exercised by the Bank against the Borrower or against any bankruptcy trustee, debtor-in-possession, assignee for the benefit of creditors, receiver, or execution, judgment, or attachment creditor of the Borrower, or against anyone else claiming through or against the Borrower. Furthermore, in the event any attachment, trustee process, garnishment, or other levy or lien (collectively a "Garnishment") issues against any Deposits (the "Liened Funds"), then the Bank shall have the unconditional right, without prior notice to the Borrower, to debit any such Liened Funds immediately prior to giving effect to such Garnishment and apply the same to any indebtedness of the Borrower to the Bank under the Loan Documents, whether or not the same has matured. In addition, without limiting any of the foregoing rights, during the existence of an Event of Default (or any event which with the passage of time, giving of notice, or both, would constitute an Event of Default), the Bank shall have the right, without notice, to "freeze" or segregate any or all of the Deposits such that the Borrower may not access, control, or draw upon them.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by the Administrative Agent against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, ARE CREDITS OR OTHER PROPERTY OF THE BORROWER IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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, 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, 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 arrangements with the Administrative Agent and the other Lenders with respect to such excess in accordance with the provisions of Section 4.5.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right of set-off upon if any and all of the following: (i) moniesObligations are due and payable and have not been paid or any Event of Default shall have occurred, securities, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingBorrower in the possession of such Lender may be applied to or set off by such Lender without further notice to the Borrower against the payment of Obligations whether direct, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of Borrower to such Lender; provided however that such Lender shall advise the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents Borrower and the Repurchase Obligations, irrespective of whether Buyer, Administrative Agent promptly after making any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. set off.. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender that if any Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim constituting the Obligations owed to 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 such amount to the payment of the Obligations owed to such Lender in excess of its ratable portion of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the 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.
Appears in 1 contract
Setoff. In addition Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself Borrower and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents hereafter arising, of such Borrower to such Lender (it being understood and irrespective agreed that, notwithstanding anything in this Credit Agreement or any of the currencyother Loan Documents to the contrary, place deposits, sums, securities or other property of payment or booking office of the amount or obligation and in each case any Foreign Subsidiary (including any Foreign Borrower) will not serve at any time held time, directly or owing by Buyerindirectly, any Affiliate to collateralize or otherwise offset the Obligations of Buyer Hexcel or any Indemnified Person to or for the credit of Guarantor or any Affiliate of GuarantorDomestic Subsidiary, without prejudice to Buyer’s right to recover any deficiency. Each of Buyerand, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documentsin addition, the Repurchase deposits, sums, securities or other property of a Foreign Subsidiary will only serve to collateralize or offset the Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any another Foreign Borrower if such notice being expressly waived Foreign Subsidiary is owned by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveForeign Borrower). ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any Borrower to such Lender, other than Indebtedness evidenced by the Revolving Credit Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Lender, and (b) if such Lender shall receive from any Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by such Lender 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 Revolving Credit Note or Revolving Credit Notes held by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit 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 Revolving Credit Notes held by 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. If, for the purpose of exercising the right of setoff pursuant to this Section 15.1, it becomes necessary to convert any amount in Dollars or in any other currency into any other currency, such conversion shall be made as provided in the first sentence of Section 12.5.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-any Event of Default, any deposits or other sums credited by or due from any of the Lenders or the Agent to the Borrowers may be applied to or set off upon by such Lender against the payment of Obligations and any and all of the following: (i) moniesother liabilities, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender or, as the case may be, 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 held by such Lender or, as the case may be, constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from either of Buyer the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or, as the case may be, constituting Reimbursement Obligations owed to, such Lender, by proceedings against the Borrowers at law or in equity in accordance with the terms of this Credit Agreement, or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or, as the case may be, Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by or, as the case may be, Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and payable arrangements with 91 -85- the other Lenders with respect to such excess, either by Guarantor 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 or, as the case may be, Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be promptly rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount promptly restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition The Borrowers hereby grant to any rights the Agents, the Issuing Lender and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Agents, the Issuing Lender and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements custody, safekeeping or control of Law such Agent, the Issuing Lender or otherwise, Guarantor, on behalf such Lender or any of itself their Affiliates and each their respective successors and assigns or in transit to any of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment them.Regardless of the Repurchase Obligationsadequacy of any collateral, a right of set-off upon if any and all of the following: (i) moniesObligations are due and payable and have not been paid or during the continuance of an Event of Default, securities, collateral any deposits or other sums credited by or due from any Lender or the Administrative Agent to the Borrowers and any securities or other property of Guarantor the Borrowers in the possession of such Lender or the Administrative Agent may be applied to or set off against the payment of the Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor Borrowers to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLenders. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrowers any amount in respect of the Obligations, 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 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 Obligations owed to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the Obligations such Lender’s 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.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Setoff. In addition Each Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing Lien, security interest and right of setoff as security for all of its liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any Collateral, securitiesduring the continuance of any Event of Default, collateral any deposits or other sums credited by or due from any of the Lenders to any of the Borrowers and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place Borrowers in the possession of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Lender may be applied to or for set off by such Lender against the credit payment of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase overdue Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURED THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF EITHER BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any Borrower to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, 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 held by such Lender, or constituting Reimbursement Obligations owed to such Lender, and (B) if such Lender shall receive from such Borrower, 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, or constituting Reimbursement Obligations owed to such Lender 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 Loans made by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made 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 as shall result in each Lender receiving in respect of the Loans made by it 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.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
Setoff. In addition to Each Alternate Currency Lender agrees that if it shall, though the exercise of a right of banker's lien, setoff or counterclaim, a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Alternate Currency Lender under any rights now applicable bankruptcy, insolvency or hereafter granted under the Repurchase Documents, Requirements of Law other similar law or otherwise, Guarantoror by similar means, on behalf obtain payment (voluntary or involuntary) of itself any Alternate Currency Loan or Loans as a result of which the unpaid principal portion of the Alternate Currency Loans of such Alternate Currency Lender shall be proportionately less than the unpaid principal portion of the Alternate Currency Loans of any other Alternate Currency Lender at face value, and shall promptly pay to such other Alternate Currency Lender the purchase price for, a participation in the Alternate Currency Loans of such other Alternate Currency Lender, so that the aggregate unpaid principal amount of the Alternate Currency Loans and participations in the Alternate Currency Loans held by each Alternate Currency Lender shall be in the same proportion to the aggregate unpaid principal amount of all Alternate Currency Loans then outstanding as the principal amount of its Affiliates (excluding in Alternate Currency Loans prior to such exercise of banker's lien, setoff or counterclaim or other event was to the principal amount of all Alternate Currency Loans outstanding prior to such exercise of banker's lien, setoff or counterclaim or other event; provided, however, that, if any such purchase or purchases or adjustments shall be made pursuant to this Section 20 4.05 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. Each Borrower party to this Addendum expressly consents to the foregoing arrangements and agrees that any Affiliate that is Alternate Currency Lender holding a Variable Interest Entity), hereby grants participation in an Alternate Currency Loan deemed to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon have been so purchased may exercise any and all rights of the following: (i) moniesbanker's lien, securities, collateral setoff or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) counterclaim with respect to any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed moneys owing by Buyer or any Affiliate of Buyer such Borrowing Subsidiary to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed such Alternate Currency Lender by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer reason thereof as fully as if such Alternate Currency Lender had made an Alternate Currency Loan directly to Guarantor or any Affiliate of Guarantor, such Borrower in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORparticipation.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Readers Digest Association Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of Buyer credit) and each Indemnified Person is hereby authorized upon to the Indebtedness evidenced by all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition Each of the Borrowers hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrowers and any securities or other property of Guarantor either Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingentcontingent then due or to become due, matured now existing or unmaturedhereafter arising, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person either Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF EITHER BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 held by such Lender or constituting Obligations under Hedging Agreements or 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 held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from either Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender by proceedings against either 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, or Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and Reimbursement Obligations or Obligations under Hedging Agreements 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 as shall result in each Lender receiving in respect of the Notes held by it or Obligations under Hedging Agreements 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.
Appears in 1 contract
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon Borrowers and any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor any of the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be (or is ever) applied to Indebtedness of any of the Borrowers to such Lender, other than Indebtedness evidenced by the Notes held by such Lender, or Loan Accounts maintained by any Lender or the Fronting Bank or constituting Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to such Lender, such amount shall be applied first to the Indebtedness evidenced by all such Notes or Loan Accounts held by such Lender or constituting Reimbursement Obligations or Foreign Reimbursement Obligations owed to such Lender, and its respective Affiliates and (b) if such Lender shall receive from any proceeds from of the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of GuarantorBorrowers, whether for safekeepingby voluntary payment, custodyexercise of the right of setoff, pledgecounterclaim, transmissioncross action, collection enforcement of the claim evidenced by the Notes held by, or Loan Accounts maintained by or constituting Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, such Lender by proceedings against such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, (ii) and shall retain and apply to the payment of the Note or Notes held by, or Loan Accounts maintained by or Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, such Lender any amount in excess of its applicable ratable portion of the payments received by all of the Lenders with respect to the Notes held by, or Loan Accounts maintained by and Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, all deposits (generalof the Lenders, specifiedsuch Lender will make such disposition and arrangements with the other Lenders with respect to such excess, specialeither by way of distribution, timepro tanto assignment of claims, demandsubrogation or otherwise as --- ----- shall result in each Lender receiving in respect of the Notes held by it or Loan Accounts maintained by it or Reimbursement Obligations or Foreign Reimbursement Obligations, provisional or final) and creditsas the case may be, claims or Indebtedness of Guarantor owed it, its applicable proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate Guarantor at any time existingpart of -------- such excess payment is thereafter recovered from such Lender, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor such disposition and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor arrangements shall be rescinded and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor restored to the extent permitted by any Requirements of Lawsuch recovery, to set-offbut without interest. THE ADMINISTRATIVE AGENT, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiencyTHE FOREIGN AGENT AND THE SYNDICATION AGENT. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTOR.---------------------------------------------------------------------
Appears in 1 contract
Sources: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Holdings Inc)
Setoff. In addition Each Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to any Borrower and any securities or other property of Guarantor such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to or participations in Swing Line Loans 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans 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, protanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it or Reimbursement Obligations owed it, or participations in Swing Line Loans held by 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all Obligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate Borrower in the possession of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Lender may be applied to or for set off by such Lender against the credit payment of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Buca Inc /Mn)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer Lender a lien, security interest and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off setoff as security for all Obligations to Lender upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of Lender, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at entity under the control of Lender, or its parent entity(ies), or in transit to any of them. At any time existing, (iii) any obligation owed by Buyer without demand or notice, Lender may set off the same or any Affiliate part thereof and apply the same to the Obligations of Buyer to Guarantor or any Affiliate of Guarantor Borrower, even though unmatured and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective regardless of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE FOREGOING RIGHT OF SET-OFF, BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED WAIVED.
15. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY GUARANTOR AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF M▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY, OR AT THE SOLE OPTION OF Lender, IN ANY OTHER COURT IN WHICH Lender SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER AND LENDER EACH AFFILIATE WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF GUARANTOR.BORROWER AND Lender AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15. Optical Cable – Loan and Security Agreement – EXECUTION VERSION
Appears in 1 contract
Setoff. In addition The Borrowers hereby grant to any rights the Administrative Agent, the Issuing Bank and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent, the Issuing Bank and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase ObligationsAdministrative Agent, a right the Issuing Bank or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or the Issuing Bank to any Borrower and any securities or other property of Guarantor any Borrower in the possession of such Lender or Issuing Bank may be applied to or set off by such Lender or the Issuing Bank against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment Borrowers to such Lender or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveIssuing Bank. ANY AND ALL RIGHTS TO REQUIRE BUYER ANY LENDER OR OTHER INDEMNIFIED PERSONS ISSUING BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 the Loans or Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Loans and Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the Loans or Reimbursement Obligations owed to such Lender by proceedings against any 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 Loans or Reimbursement Obligations owed to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans 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 as shall result in each Lender receiving, in respect of the Loans and Reimbursement Obligations owed to 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Seneca Foods Corp /Ny/)
Setoff. In addition Each Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any Borrower and any securities or other property of Guarantor any Borrower in the possession of such Lender may be applied to or set off by the Administrative Agent against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit 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 Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit 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, any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by all of the Lenders, such Lender will make arrangements with the Administrative Agent and the other Lenders with respect to such excess in accordance with the provisions of Section 4.6.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-any Event of Default, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower may be applied to or set off upon by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all of the following: (i) moniesother liabilities, securitiesdirect, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currencyBorrower to such Lender; provided, place that in the event that any Defaulting Lender shall exercise any such right of payment or booking office 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 §4.16 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 amount or obligation Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in each case at any time held or reasonable detail the Obligations owing by Buyer, any Affiliate to such Defaulting Lender as to which it exercised such right of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysetoff. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amount shall be applied to documentary letters of Buyer credit) and each Indemnified Person is hereby authorized upon to the Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Credit Agreement, or constituting Reimbursement Obligations owed to, 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 Obligations held by such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made by, and payable 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 Guarantor way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Loans made by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Each Loan Party hereby grants to Buyer Lender a lien, security interest and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off setoff as security for all Obligations to Lender upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of Lender, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at entity under the control of Lender, or its parent entity(ies), or in transit to any of them. At any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under during the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence existence of an Event of Default, without notice Guarantor demand or notice, Lender may set off the same or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor part thereof and each Affiliate of Guarantor apply the same to the extent permitted by any Requirements Obligations of LawBorrowers, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE FOREGOING RIGHT OF SET-OFF, BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED WAIVED.
15. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY GUARANTOR AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF MERCER, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY OR AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH AFFILIATE LOAN PARTY AND LENDER EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF GUARANTORLOAN PARTIES AND LENDER AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 owed to 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 owed to such Lender, and (b) if such Lender shall receive from the Borrower, 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 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 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.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Agent and each of the Banks a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Agent and each Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Agent or such Bank or any affiliate of set-off upon any Bank and all their successors and assigns or in transit to any of them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the obligations owing from the Borrower to the Agent or any Bank hereunder are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Banks to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Bank may be applied to or set off by such Bank against the payment of such obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR ANY OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSCOLLATERAL WHICH SECURES SUCH OBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agree with each other 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 Notes held by such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes 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 Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Loan Agreement (Cabot Corp)
Setoff. In addition Regardless of the adequacy of any collateral for the Obligations, any deposits or other sums credited by or due from any of the Banks to the Borrowers or the Guarantors may be applied to or set off following an Event of Default against any rights now principal, interest and any other amounts due from the Borrowers or hereafter granted under any Guarantor to the Repurchase DocumentsBanks at any time without notice to the Borrowers or the Guarantors, Requirements of Law or compliance with any other procedure imposed by statute or otherwise, Guarantorall of which are hereby expressly waived by the Borrowers and the Guarantors. Each of the Banks agrees with each other Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrowers to such Bank, on behalf other than Indebtedness evidenced by the Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from any Borrower, whether by voluntary payment, exercise of itself the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Bank 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 each shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Bank any amount in excess of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment ratable portion of the Repurchase Obligations, a right of set-off upon any and payments received by all of the following: (i) moniesBanks with respect to the Notes held by, securitiesand Reimbursement Obligations owed to, collateral all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of --- ----- claims, subrogation or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, otherwise as shall result in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective Bank receiving in respect of the currencyNotes held by it or Reimbursement obligations owed it, place its proportionate payment as contemplated by this Agreement; provided that if all or -------- any part of such excess payment or booking office of is thereafter recovered from such Bank, such disposition and arrangements shall be rescinded and the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)
Setoff. In addition Borrower hereby grants to any rights the Loan Servicer and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and Obligations to the Loan Servicer and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Loan Servicer or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by the Loan Servicer against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit 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, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit 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, any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by all of the Lenders, such Lender will make arrangements with the Loan Servicer and the other Lenders with respect to such excess in accordance with the provisions of Section 4.6.
Appears in 1 contract
Setoff. In addition to During the continuance of any rights now or hereafter granted under the Repurchase Documents, Requirements Event of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: (i) monies, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by BuyerDefault, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalgeneral or specific, specified, special, time, time or demand, provisional or final, regardless of currency, maturity, or the branch of where such deposits are held) and credits, claims or Indebtedness other sums credited by or due from any of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer the Lenders to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor the Borrower and any Indebtedness owed by Buyer securities or other property of the Borrower in the possession of such Lender may be applied to or set off against the payment of Obligations and any Affiliate of Buyer to Guarantor or any Affiliate of Guarantorand all other liabilities, in each case whether direct direct, or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate 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, whether by voluntary payment, exercise of Buyer 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by such Lender any amount becoming due 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 payable arrangements with the other Lenders with respect to such excess, either by Guarantor 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 Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, but without interest, unless the Lender from whom such payment is recovered is required to set-offpay interest thereon, appropriate, apply and enforce in which case each Lender returning funds to such right Lender shall pay its allocable share of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate such interest based on the period of Guarantor under time that it was in possession of the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORfunds being returned.
Appears in 1 contract
Sources: Credit Agreement (Liberty Property Limited Partnership)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to or participations in Swing Line Loans 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans 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 Revolving Credit Notes held by it or Reimbursement Obligations owed it, or participations in Swing Line Loans held by 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.
Appears in 1 contract
Setoff. In addition The Borrowers hereby grant to any rights the Administrative Agent, the Collateral Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent, the Collateral Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase ObligationsAdministrative Agent, a right the Collateral Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any of the Borrowers and any securities or other property of Guarantor any of the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any of the Borrowers to such Lender, other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any of the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lender 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 or Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Setoff. In addition The Borrowers hereby grant to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to such Borrower and any securities or other property of Guarantor such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. The Lenders agree among themselves that, if a Lender shall obtain payment on any Loan outstanding under this Credit Agreement through the exercise of a right of offset, banker's lien or counterclaim, or from any other source (other than by way of a PRO RATA payment under this Agreement or a required payment under a Note), it shall promptly make such adjustments with the other Lenders as shall be equitable to the end that all the Lenders shall share the benefits of such payments PRO RATA in accordance with the aggregate unpaid amount of the Notes held by each Lender immediately prior to the payment obtained by such Lender as aforesaid. The Lenders further agree among themselves that if any payment to a Lender obtained by such Lender through the exercise of a right of offset, banker's lien or counterclaim, or from any other source (other than by way of a PRO RATA payment) as aforesaid shall be rescinded or must otherwise be restored, the Lenders who shall have shared the benefit of such payment shall return their share of that benefit to the Lender whose payment shall have been rescinded or otherwise restored.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Iesi Tx Corp)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may, after giving prior written notice thereof to the Borrower, be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due and owing, now existing or unmaturedhereafter arising, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit Notes held by such Lender 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held 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 as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream Corp)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the ------ continuance of set-off upon an Event of Default, any deposits or other sums credited by or due from the Lenders to the Borrowers and all of the following: (i) monies, securities, collateral any securities or other property of Guarantor the Borrowers in the possession of the Lenders may be applied to or set off against the payment of the Obligations hereunder and its respective Affiliates under any Note and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of Borrowers to the amount or obligation Lenders and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencyAgent. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrowers to such Lender, each Affiliate other than indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Agreement; provided that -------- if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (United States Filter Corp)
Setoff. In addition Regardless of the adequacy of any Collateral, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment member of the Repurchase Obligations, a right of set-off upon Consolidated Group and any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor any member of the Consolidated Group in the possession of such Lender may, upon the consent of the Agent and its respective Affiliates the Majority Lenders, be applied to or setoff against the payment of Obligations of the Consolidated Group hereunder and any proceeds from under the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) other Loan Documents and any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case Consolidated Group to such Lender at any time held or owing by Buyer, after the occurrence and during the continuance of any Affiliate Event of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencyDefault. Each of Buyerthe Lenders agrees with each other Lender that (a) if an amount to be setoff is to be applied to Indebtedness of the Borrower or other Property Owners to such Lender, each Affiliate 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 other Property Owners, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross-action, enforcement of the claim evidenced by the Notes held by such Lender by proceedings against the Borrower or other Property Owners at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings or otherwise, and each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by such Lender any amount becoming due 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 payable arrangements with the other Lenders with respect to such excess, either by Guarantor 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 Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Senior Secured Facilities Credit Agreement (Wci Communities Inc)
Setoff. In addition Each of the Loan Parties hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Loan Parties and any securities or other property of Guarantor any Loan Party in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingentcontingent then due or to become due, matured now existing or unmaturedhereafter arising, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing Loan Party to such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY LOAN PARTY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 Loan Parties to such Lender, other than Indebtedness evidenced by the Notes held by such Lender or constituting Obligations under Hedging Agreements or 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 held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any Loan Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender by proceedings against any Loan Party 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, or Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and Reimbursement Obligations or Obligations under Hedging Agreements 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 as shall result in each Lender receiving in respect of the Notes held by it or Obligations under Hedging Agreements 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.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase ObligationsLender, a continuing lien, security interest and right of set-off setoff as security for all liabilities and obligations to such Lender hereunder, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledge, transmission, collection safekeeping or otherwise, (ii) control of such Lender or in transit to it. At any and all deposits (general, specified, special, time, demand, provisional without demand or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, notice (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to Borrower), any Lender may setoff the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer same or any Indemnified Person by Guarantor part thereof and apply the same to any liability or any Affiliate obligation of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents Borrower hereunder even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORTHE BORROWER. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower, 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 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, unless the Lender from whom such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its allocable share of such interest based on the period of time that it was in possession of the funds being returned.
Appears in 1 contract
Sources: Credit Agreement (Liberty Property Limited Partnership)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of any Lender may be applied to or set off by such Lenders against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, each Affiliate 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 Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, such Lenders any amount becoming due 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 Lenders will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor 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 Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Intercreditor Agreement (Prentice Capital Management, LP)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree with each other Lender that if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held 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 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 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.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer Agent and each Indemnified PersonLender, to secure repayment a lien, security interest and right of the Repurchase setoff as security for all Lender Obligations, a right of set-off whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor Collateral and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of the Agent or any Lender or any entity under the control of FleetBoston Financial Group, transmissionInc., collection or otherwise, (ii) in transit to any and all deposits (general, specified, special, of them. At any time, demandwithout demand or notice, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Defaulta Default and at any time during its continuance, without notice Guarantor Agent and each Lender may setoff the same or any Affiliate part thereof and apply the same to any liability or obligation of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents Borrower even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLoan. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS AGENT AND LENDERS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSLOAN, PRIOR TO EXERCISING THE FOREGOING THEIR RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. The right of setoff contained herein shall be applicable to the Reserve Accounts. Each of the Lenders agrees that if such Lender shall receive from the Borrower or any Borrower Subsidiary, 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 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, 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.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any Collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to Borrower and any securities or other property of Guarantor Borrower in the possession of such Lender may be applied to or set off by the Administrative Agent against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender hereunder. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, ARE CREDITS OR OTHER PROPERTY OF THE BORROWER IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender (a) to apply all amounts collected from any such set-off to the Obligations before applying such amounts to any other Indebtedness or other obligations owed by the Borrower and any of its Subsidiaries to such Lender, and (b) if such Lender shall receive from the Borrower, 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, 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 arrangements with the Administrative Agent and the other Lenders with respect to such excess in accordance with the provisions of Section 4.5.
Appears in 1 contract
Sources: Term Loan Agreement (TAL International Group, Inc.)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer each Lender a continuing lien, security interest and, after the occurrence and each Indemnified Person, to secure repayment during the continuation of the Repurchase Obligationsan Event of Default, a right of set-off setoff for all liabilities and obligations to such Lender hereunder, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledge, transmission, collection safekeeping or otherwise, (ii) control of such Lender or in transit to it. At any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon after the occurrence and during the continuation of an Event of Default, without demand or notice Guarantor or any Affiliate of Guarantor, (any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to Borrower), any Lender may setoff the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer same or any Indemnified Person by Guarantor part thereof and apply the same to any liability or any Affiliate obligation of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents Borrower hereunder even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL WHICH SECURES -90- 2076882.7 THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORTHE BORROWER. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower, 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 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, unless the Lender from whom such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its allocable share of such interest based on the period of time that it was in possession of the funds being returned. Notwithstanding the foregoing, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of §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 and the Lenders, and (y) 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: Credit Agreement (Monmouth Real Estate Investment Corp)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon an Event of Default, any and all deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Banks to the Company and any securities or other property of Guarantor the Company in the possession of such Bank may be applied to or set off by such Bank against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Company to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agree with each other Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Company to such Bank, other than Indebtedness evidenced by the Notes held by such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank, and (b) if such Bank shall receive from the Company, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by such 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 Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Banks to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate Borrower in the possession of Buyer such Bank or any Indemnified Personentity under the control of FleetBoston Corporation or any other Bank's corporate parent, for or in transit to any of them, may be applied to or set off by such Bank against the account payment of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) Obligations and any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER THE ADMINISTRATIVE AGENT OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSLOANS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agrees with each other Bank that (i) 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 Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (ii) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed 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, or Reimbursement Obligations owed to, such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank receiving in respect of the Notes held by it 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bell Sports Corp)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Each Loan Party hereby grants to Buyer Lender a lien, security interest and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off setoff as security for all Obligations to Lender upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of Lender, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at entity under the control of Lender, or its parent entity(ies), or in transit to any of them. At any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under during the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence existence of an Event of Default, without notice Guarantor demand or notice, Lender may set off the same or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor part thereof and each Affiliate of Guarantor apply the same to the extent permitted by any Requirements Obligations of LawBorrowers, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE FOREGOING RIGHT OF SET-OFF, BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED WAIVED.
15. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY GUARANTOR AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF ▇▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY OR AT THE SOLE OPTION OF Lender, IN ANY OTHER COURT IN WHICH Lender SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH AFFILIATE LOAN PARTY AND Lender EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF GUARANTORLOAN PARTIES AND Lender AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15. Each Borrower, each Guarantor and Lender have executed this Agreement and delivered this Agreement to Lender at Lender's place of business in Princeton, New Jersey as of the date first above written. SPAR MARKETING FORCE, INC., a Nevada corporation, as US Borrower By:______________________________________ Name: Title: SPAR CANADA COMPANY, an unlimited company organized under the laws of Nova Scotia, as Canadian Borrower By:______________________________________ Name: Title: SPAR GROUP, INC., a Delaware corporation, as a Guarantor By:______________________________________ Name: Title: SPAR ACQUISITION, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR CANADA, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR TRADEMARKS, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR ASSEMBLY & INSTALLATION, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: NORTH MILL CAPITAL LLC, a Delaware limited liability company, as Lender By:______________________________________ Name: Title: Bank Name, Address, and Wire Transfer Instructions: Schedule 5.13 ▇▇▇▇▇▇▇▇ Settlement means [___]. ▇▇▇▇▇ Settlement means [___]. ▇▇▇▇▇▇▇ Advanced Settlement means [___]. Exhibit 6.4 Pursuant to Section 6.4 of that certain Loan and Security Agreement, dated April 10, 2019, by and among SPAR MARKETING FORCE, INC., a Nevada corporation, SPAR CANADA COMPANY, an unlimited company organized under the laws of Nova Scotia (collectively, "Borrowers"), the Guarantors party thereto and NORTH MILL CAPITAL LLC ("Lender") (as amended, modified, supplemented, substituted, extended or renewed from time to time, the "Loan Agreement"), each of the undersigned Borrowers hereby certifies to Lender as follows:
1. All reports, statements or computer prepared information of any kind or nature delivered or caused to be delivered to Lender in connection with the Loan Agreement fairly represent each Borrower's financial condition.
2. There exists no condition or event which constitutes an Event of Default (as defined in the Loan Agreement) including, without limitation, any cross-default with other lenders. ______________ Yes (skip to #3) Or ______________ No (then answer below) The following Events of Default (as defined in the Loan Agreement) exist:
(2) and the following sets forth in detail what action Borrowers propose to take with respect thereto:
3. The financial statements provided by Borrowers to Lender are: __ Audited (SGRP annual only) __ Reviewed (SGRP quarterly only) __ Compiled Required under Section 6.4 (Financial Statements, Reports, Certificates) - _____________ In compliance? ___ Yes ___ No
4. The following are calculations of the following covenants set forth in the Loan Agreement:
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all an Event of the following: Default, (i) monies, securities, collateral any deposits or other sums credited by or due from any of the Banks to the Company and any securities or other property of Guarantor the Company in the possession of such Bank may be applied to or set off by such Bank against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment Company to such Bank and (ii) any deposits or booking office other sums credited by or due from any of the amount Banks to Hasbro SA and any securities or obligation and other property of Hasbro SA in each case at any time held or owing by Buyer, any Affiliate the possession of Buyer or any Indemnified Person such Bank may be applied to or for set off by such Bank against the credit payment of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer the Hasbro SA Obligations and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred other liabilities, direct, or indirect, absolute or contingent, due or to against any amounts owing become due, now existing or hereafter arising, of Hasbro SA to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR HASBRO SA, AS THE CASE MAY BE, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agree with each other Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Company or Hasbro SA, as the case may be, to such Bank, other than Indebtedness evidenced by the Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from the Company or Hasbro SA, as the case may be, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Bank by proceedings against the Company and/or Hasbro SA 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, or Reimbursement Obligations owed to, such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon Borrowers and any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor any of the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of such Borrower to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from such Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lender 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiencyinterest.
1. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORADMINISTRATIVE AGENT.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agree 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, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Agent and each of the Banks a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Agent and each Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Agent or such Bank or any affiliate of set-off upon any Bank and all their successors and assigns or in transit to any of them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the obligations owing from the Borrower to the Agent or any Bank hereunder are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Banks to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Bank may be applied to or set off by such Bank against the payment of such obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY BANK TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR ANY OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSCOLLATERAL WHICH SECURES SUCH OBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agree with each other 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 Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed 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, or Reimbursement Obligations owed to, such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Bank 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Credit Agreement (Cabot Corp)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any Collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrowers and any securities or other property of Guarantor the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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 Term Loan Notes held by such Lender, each Affiliate such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Term Loan Notes held by such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Term Loan 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Term Loan Notes held by such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Term Loan Notes held by all of the Lenders, such Lender will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Term Loan Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted of such recovery, but without interest, provided, further, that the foregoing shall not apply to any amount received by any Requirements Lender or its Affiliates in connection with, or related to, transactions, including financial accommodations and leases, with any of Law, the Borrowers which are not related to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer the transactions contemplated by this Credit Agreement or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORPrepetition Notes.
Appears in 1 contract
Sources: Credit Agreement (WorldSpace, Inc)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and ------ each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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, 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 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 Loan 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. Each party hereto hereby agrees that, prior to the date that is one year and one day after the later of (i) the payment in full of all outstanding Obligations owed to any Conduit Lender and (ii) the Maturity Date, it will not institute against, or join any other Person in instituting against such Conduit Lender, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States of America or any state thereof.
Appears in 1 contract
Sources: Loan Agreement (Finova Group Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Revolving Credit Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Revolving Credit Note or Notes held by, or constituting Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by all of the Lenders, such Lender will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor way of distribution, PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Republic Technologies International Holdings LLC)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-any Event of Default, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower may be applied to or set off upon by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all of the following: (i) moniesother liabilities, securitiesdirect, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, now existing or hereafter arising, of the Borrower to such Lender; provided, that in the event that any Defaulting Lender 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 §4.16 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 Administrative Agent and the Lenders, and (y) 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 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 Credit Agreement or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether or not arising under the Repurchase Documents and irrespective by voluntary payment, exercise of the currencyright of setoff, place of payment or booking office counterclaim, cross action, enforcement of the claim evidenced by the Credit Agreement, or constituting Reimbursement Obligations owed to, 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 Obligations held by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made 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 obligation and otherwise as shall result in each case at any time held Lender receiving in respect of the Loans made by it or owing Reimbursement Obligations owed it, its proportionate payment as contemplated by Buyer, any Affiliate of Buyer this Credit Agreement; provided that if all or any Indemnified Person to or for part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiencyinterest. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTOR.47438543.7
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. In addition The Borrower hereby grants to any rights the Banks a continuing lien and security interest and right of setoff as security for all Obligations upon and against all deposits, credits, collateral and property now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Banks or any of set-off upon their Affiliates or in transit to any and all of them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesduring the continuance of any Event of Default, collateral any deposits or other sums credited by or due from any of the Banks to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now Borrower in the possession of such Bank or hereafter held in transit to it may be applied to or received set off by Buyer, any Affiliate such Bank against the payment of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveBank. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS THE BANKS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, OBLIGATIONS PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, SETOFF ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Banks agrees with each other 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 Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed 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, or Reimbursement Obligations owed to, such Bank any amount in excess of its ratable portion of the payments received by all of the Banks with respect to the Notes held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bank receiving in respect of the Notes held by it 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 Bank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Weider Nutrition International Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon an Event of Default, any deposits or other sums credited by or due from the Lenders to the Borrowers and all of the following: (i) monies, securities, collateral any securities or other property of Guarantor the Borrowers in the possession of the Lenders may, with the prior written consent of the Managing Agent, be applied to or set off against the payment of the Obligations hereunder and its respective Affiliates under any Note and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of Borrowers to the amount or obligation Lenders and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencyAgents. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrowers to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)
Setoff. In addition Each Borrower hereby grants to the Administrative Agent and ------ each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property (other than funds or other property held in trust or as collateral for an obligation of the Borrowers or their Subsidiaries to a third party pursuant to a written agreement whereby the Administrative Agent or any rights Lender has acknowledged and consented to such arrangement), now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any Borrower and any securities or other property of Guarantor any Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective of the currencyhereafter arising, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing Borrower to such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held 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 as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Us Xpress Enterprises Inc)
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon Borrowers and any and all of the following: (i) monies, securities, collateral securities or other property of Guarantor the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Notes held by 88 -81- such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from any of Buyer the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any rights now or hereafter granted the Borrower (other than those arising under the Repurchase Documents, Requirements Consolidated Credit Agreement) may be applied to or set off by such Lender against the payment of Law or otherwise, Guarantor, on behalf of itself Obligations and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: (i) moniesother liabilities, securitiesdirect, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe 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, each Affiliate other than Indebtedness evidenced by the Term Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by such Term Notes held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Term 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Term Note or Term Notes held by such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Term Notes held by all of the Lenders, such Lender will make such disposition and payable arrangements with the other Lenders with respect to such excess, either by Guarantor way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Term Notes held by its proportionate payment as contemplated by this Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition The Borrowers and Guarantors hereby grant to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to any Borrower or any Guarantor and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer Borrower or any Indemnified Person, for Guarantor in the account possession of Guarantor, whether for safekeeping, custody, pledge, transmission, collection such Lender may be applied to or otherwise, (ii) set off by such Lender against the payment of Obligations and any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer Borrower or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY BORROWER OR ANY GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 any Borrower or Guarantor 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 Borrower or any Guarantor, 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 Borrower or any Guarantor 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 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 Loan 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; provided further that the provisions of this Section shall not be construed to apply to (w) any payment made by or on behalf of any Borrower pursuant to and in accordance with the express terms of this Loan Agreement, or (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to any Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer Lender a lien, security interest and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off setoff as security for all Obligations to Lender upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledgesafekeeping or control of Lender, transmissionor any entity under the control of Lender, collection or otherwiseits parent entity(ies), (ii) or in transit to any and all deposits (general, specified, special, of them. At any time, demandwithout demand or notice, provisional or final) and credits, claims or Indebtedness of Guarantor Lender may set off the same or any Affiliate Guarantor at any time existingpart thereof and apply the same to the Obligations of Borrower, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor even though unmatured and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective regardless of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING ITS RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE FOREGOING RIGHT OF SET-OFF, BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED WAIVED. American Gaming - Loan and Security Agreement – EXECUTION VERSION
15. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY GUARANTOR AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF ▇▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY, OR AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER AND LENDER EACH AFFILIATE WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF GUARANTORBORROWER AND LENDER AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may, after giving prior written notice thereof to the Borrower, be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due and owing, now existing or unmaturedhereafter arising, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit Notes held by such Lender 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held 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 as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream Corp)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other indebtedness and to the indebtedness constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim constituting Reimbursement Obligations owed to, 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 Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the Reimbursement Obligations owed it, its proportionate payment as contemplated by this Reimbursement and Pledge 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.
Appears in 1 contract
Sources: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of Buyer the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement obligations owed it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Sassco Fashions LTD /De/)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), The Borrower hereby grants to Buyer the Administrative Agent, each of the Lenders and each Indemnified Person, to secure repayment of the Repurchase ObligationsLender Affiliate, a right of set-off upon any and setoff as security for all of its liabilities and obligations to the following: (i) moniesAdministrative Agent and each Lender, securitieswhether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders or any Lender Affiliate to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate Borrower in the possession of Buyer such Lender or any Indemnified Person, for Lender Affiliate may be applied to or set off by such Lender against the account payment of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) Obligations and any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORRROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower, 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 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 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.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Barnes Group Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), Borrower hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase ObligationsLender, a continuing lien, security interest and right of set-off setoff as security for all liabilities and obligations to such Lender hereunder, whether now existing or hereafter arising, upon any and against all of the following: (i) moniesdeposits, securitiescredits, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoingproperty, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for in the account of Guarantor, whether for safekeepingpossession, custody, pledge, transmission, collection safekeeping or otherwise, (ii) control of such Lender or in transit to it. At any and all deposits (general, specified, special, time, demand, provisional without demand or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, notice (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to Borrower), any Lender may setoff the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer same or any Indemnified Person by Guarantor part thereof and apply the same to any liability or any Affiliate obligation of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents Borrower hereunder even though unmatured and regardless of the adequacy of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORTHE BORROWER. Each of the Lenders agrees with each other Lender that if such Lender shall receive from the Borrower, 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 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, unless the Lender from whom such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its allocable share of such interest based on the period of time that it was in possession of the funds being returned. Notwithstanding the foregoing, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of §2.12 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 (y) 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: Credit Agreement (Liberty Property Limited Partnership)
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree with each other Lender that if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving -83- Credit Notes held 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 as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it 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.
Appears in 1 contract
Setoff. In addition The Borrower hereby grants to any rights the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 Revolving Credit Notes held by such Lender 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 Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held 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 as shall result in each Lender receiving in respect of the Revolving Credit Notes held by it 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.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under To the Repurchase Documentsexten.t permlited by applicable law, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, Lender reserves a right of set-off upon any setoff In all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all of accounts Guarantor may open in the following: (i) moniesfuture. However. this does not include any IRA or K▇▇▇▇ accounts, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Persontrust accounts for which setoff would be prohibited by law, for the account of GuarantorGuarantor authorizes lender, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by applicable law, lo hold these funds if there Is a default, and Lender may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty. SUBORDINATION OF B▇▇▇▇▇▇▇'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether now existing or hereafter created, shall be superior to any Requirements of Lawclaim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes Insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to set-offany claim that lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, appropriatethrough bankruptcy, apply by an assignment for the benefit of creditors, by voluntary liquidalion, or otherwise, the assets of Borrower applicable to the payment of the claims of both L▇▇▇▇▇ and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted paid to Buyer Lender and shall be first applied by Lender to the other Indemnified Persons Indebtedness. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee ln bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring lo Lender full payment In legal tender of lhe Indebtedness. If lender so requests, any notes or credit agreements now or hereafter evidencing any debt's or obligations of B0rrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. G▇▇▇▇▇▇▇▇ agrees, and L▇▇▇▇▇ is hereby authorized, in the full amount name of all amounts owing Guarantor, from Ume to Buyer lime !'o file financing statements and the continuaUon statements and to execute d0cuments and to take such other Indemnified Parties by Guarantor actions as Lender deems necessary or appropriate to perfect, preserve and all Affiliates enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS, The following miscellaneous provisions are a part of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTOR.this Guaranty:
Appears in 1 contract
Sources: Commercial Guaranty (Gaia, Inc)
Setoff. In addition Borrower hereby grants to any rights the Administrative Agent and each Lender and Interest Rate Hedge Counterparty a continuing lien, security interest and right of setoff as security for all Obligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase ObligationsAdministrative Agent, a right such Lender (or any Lender Affiliate) and such Interest Rate Hedge Counterparty and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any such Secured Party to the Borrower and any securities or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate Borrower in the possession of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Secured Party may be applied to or for set off by such Lender against the credit payment of Guarantor or Obligations, subject to Section 4.4; provided that in the event that any Affiliate of Guarantor, without prejudice to Buyer’s right to recover Defaulting Lender will exercise any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-setoff, (a) all amounts so set off against any will be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 15.13 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate deemed held in trust for the benefit of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer Administrative Agent and the other Indemnified Persons Lenders, and (b) the Defaulting Lender will provide promptly to Administrative Agent a statement describing in reasonable detail the full amount of all amounts Obligations owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates such Defaulting Lender as to which it exercised such right of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for abovesetoff. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY SECURED PARTY TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED.
Appears in 1 contract
Setoff. In addition The Borrowers hereby grant to any rights the Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter granted under in the Repurchase Documentspossession, Requirements of Law custody, safekeeping or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment control of the Repurchase Obligations, a right Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of set-off upon any and all them. Regardless of the following: (i) moniesadequacy of any collateral, securitiesif any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrowers and any securities or other property of Guarantor the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. Each of the Lenders agree 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 constituting Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim constituting the Obligation owed to 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 Obligations owed to such Lender any amount in excess of its “ratable portion” of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the Obligations owed it its “ratable portion” 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. As used here in “ratable portion” shall mean the amounts such Lender would have received if the amounts had been applied in accordance with Section 13.5.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the Repurchase Documentsoccurrence of, Requirements and throughout the continuance of, any Event of Law or otherwiseDefault, Guarantor, on behalf of itself each Lender and the Swingline Lender and each subsequent holder of its Affiliates (excluding in this Section 20 any Affiliate that Note is a Variable Interest Entity)hereby authorized by the Borrowers at any time or from time to time, hereby grants without prior notice to Buyer and each Indemnified the Borrower or any other Person, any such prior notice being hereby expressly waived, to secure repayment of the Repurchase Obligations, a right of set-set off upon any and all of the following: (i) monies, securities, collateral or other property of Guarantor to appropriate and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) to apply any and all deposits (general, specified, general or special, timeincluding, demandbut not limited to, provisional or final) and creditsIndebtedness evidenced by certificates of deposit, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or but not arising under the Repurchase Documents and irrespective of the currencyincluding trust accounts, place of payment or booking office of the amount or obligation and in each case whatever currency denominated) and any other Indebtedness at any time held or owing by Buyer, any Affiliate of Buyer that Lender or any Indemnified Person the Swingline Lender or that subsequent holder to or for the credit or the account of Guarantor a Borrower, whether or any Affiliate not matured, against and on account of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming the due and payable by Guarantor unpaid obligations and liabilities of such Borrower to that Lender or any Affiliate of Guarantor to Buyer the Swingline Lender or any Indemnified Person that subsequent holder under the Repurchase Credit Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person not that Lender or the Swingline Lender or that subsequent holder shall have made any demand under hereunder. Each Lender or the Repurchase Documents and regardless Swingline Lender shall promptly give notice to the Company of any action taken by it under this Section 10.6, provided that any failure of such Lender or the Swingline Lender to give such notice to the Company shall not affect the validity of such setoff. Each Lender and the Swingline Lender agrees with each other collateral securing Lender and the Swingline Lender a party hereto that if such amountsLender or the Swingline Lender receives and retains any payment, whether by setoff or application of deposit balances or otherwise, in respect of the Loans in excess of its ratable share of payments on all such Obligations then owed to the Lenders and the Swingline Lender hereunder, then such Lender or the Swingline Lender shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders such amount of the Loans held by each such other Lender or Swingline Lender as shall be necessary to cause such Lender or Swingline Lender to share such excess payment ratably with all the other Lenders and the Swingline Lender; provided, however, that if any such purchase is made by any Lender or Swingline Lender, and in all cases without waiver if such excess payment or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor part thereof is thereafter recovered from such purchasing Lender or Swingline Lender, the related purchases from the other Lenders or Swingline Lender shall be deemed directly indebted to Buyer rescinded ratably and the other Indemnified Persons purchase price restored as to the portion of such excess payment so recovered, but without interest; provided further, that in the full amount event that any Defaulting Lender 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 2.17 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 (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates such Defaulting Lender as to which it exercised such right of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORsetoff.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right of set-off upon if any and all of the following: (i) moniesObligations are due and payable and have not been paid or any Event of Default shall have occurred, securities, collateral any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of Guarantor the Borrower in the possession of such Lender may be applied to or set off by such Lender with notice to the Borrower against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrower to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for aboveLender. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS ANY LENDER TO EXERCISE THEIR ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTSOBLIGATIONS, PRIOR TO EXERCISING THE FOREGOING ITS RIGHT OF SET-OFFSETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORWAIVED. 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 the Obligations owed to such Lender, such amount shall be applied ratably to such other indebtedness and to the Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim constituting the Obligations owed to, 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 Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the 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 as shall result in each Lender receiving in respect of the 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.
Appears in 1 contract
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-any Event of Default, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower may be applied to or set off upon by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all of the following: (i) moniesother liabilities, securitiesdirect, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, now existing or hereafter arising, of the Borrower to such Lender; provided, that in the event that any Defaulting Lender 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 §4.16 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 Administrative Agent and the Lenders, and (y) 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 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 Credit Agreement or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by the Credit Agreement or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether or not arising under the Repurchase Documents and irrespective by voluntary payment, exercise of the currencyright of setoff, place of payment or booking office counterclaim, cross action, enforcement of the claim evidenced by the Credit Agreement, or constituting Reimbursement Obligations owed to, 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 Obligations held by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Loans made 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 obligation and otherwise as shall result in each case at any time held Lender receiving in respect of the Loans made by it or owing Reimbursement Obligations owed it, its proportionate payment as contemplated by Buyer, any Affiliate of Buyer this Credit Agreement; provided that if all or any Indemnified Person to or for part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Person, to secure repayment Regardless of the Repurchase Obligationsadequacy of any collateral, a right during the continuance of set-off upon any and all Event of Default, any deposits or other sums credited by or due from any of the following: (i) monies, securities, collateral Lenders to the Borrowers and any securities or other property of Guarantor the Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) any and all deposits (generalother liabilities, specifieddirect, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured due or unmaturedto become due, whether now existing or not arising under the Repurchase Documents and irrespective hereafter arising, of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person Borrowers to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiencysuch Lender. Each of Buyerthe Lenders agrees with each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrowers to such Lender, each Affiliate other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (ii) if such Lender shall receive from any of Buyer the Borrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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 each Indemnified Person is hereby authorized upon shall retain and apply to the payment of the Note or Notes held by, or Reimbursement Obligations owed to, such Lender any amount becoming due in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by, and payable 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 Guarantor 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 or Reimbursement obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any Affiliate part of Guarantor to Buyer or any Indemnified Person under such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor amount restored to the extent permitted by any Requirements of Lawsuch recovery, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases but without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORinterest.
Appears in 1 contract
Setoff. In addition Each Alternate Currency Lender agrees that if it shall, through the exercise of a right of banker's lien, setoff or counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or any rights now other security or hereafter granted interest arising from, or in lieu of, such secured claim, received by such Alternate Currency Lender under the Repurchase Documentsany applicable bankruptcy, Requirements of Law insolvency or other similar law or otherwise, Guarantoror by similar means, on behalf obtain payment (voluntary or involuntary) of itself any Alternate Currency Loan or Loans as a result of which the unpaid principal portion of the Alternate Currency Loans of such Alternate Currency Lender shall be proportionately less than the unpaid principal portion of the Alternate Currency Loans of any other Alternate Currency Lender it shall be deemed simultaneously to have purchased from such other Alternate Currency Lender at face value, and shall promptly pay to such other Alternate Currency Lender the purchase price for, a participation in the Alternate Currency Loans of such other Alternate Currency Lender, so that the aggregate unpaid principal amount of the Alternate Currency Loans and participations in the Alternate Currency Loans held by each Alternate Currency Lender shall be in the same proportion to the aggregate unpaid principal amount of all Alternate Currency Loans then outstanding as the principal amount of its Affiliates (excluding in Alternate Currency Loans prior to such exercise of banker's lien, setoff or counterclaim or other event was to the principal amount of all Alternate Currency Loans outstanding prior to such exercise of banker's lien, setoff or counterclaim or other event; provided, however, that, if any such purchase or purchases or adjustments shall be made pursuant to this Section 20 4.05 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. Each Borrower party to this Addendum expressly consents to the foregoing arrangements and agrees that any Affiliate that is Alternate Currency Lender holding a Variable Interest Entity), hereby grants participation in an Alternate Currency Loan deemed to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon have been so purchased may exercise any and all rights of the following: (i) moniesbanker's lien, securities, collateral setoff or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) counterclaim with respect to any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed moneys owing by Buyer or any Affiliate of Buyer such Borrowing Subsidiary to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed such Alternate Currency Lender by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer reason thereof as fully as if such Alternate Currency Lender had made an Alternate Currency Loan directly to Guarantor or any Affiliate of Guarantor, such Borrower in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate of Buyer or any Indemnified Person to or for the credit of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligations, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover any deficiency. Guarantor and all Affiliates of Guarantor shall be deemed directly indebted to Buyer and the other Indemnified Persons in the full amount of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligations, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORparticipation.
Appears in 1 contract
Setoff. In addition Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid or any Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Guarantor, on behalf of itself and each of its Affiliates (excluding in this Section 20 any Affiliate that is a Variable Interest Entity), hereby grants to Buyer and each Indemnified Persontime, to secure repayment of the Repurchase Obligationsfullest extent permitted by law, a right of set-to set off upon any and all of the following: (i) monies, securities, collateral or other property of Guarantor and its respective Affiliates and any proceeds from the foregoing, now or hereafter held or received by Buyer, any Affiliate of Buyer or any Indemnified Person, for the account of Guarantor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (ii) apply any and all deposits (general, specified, general or special, time, time or demand, provisional or final) and credits, claims or Indebtedness of Guarantor or any Affiliate Guarantor at any time existing, (iii) any obligation owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor and (iv) any Repurchase Obligations or Indebtedness owed by Guarantor or any Affiliate of Guarantor and any Indebtedness owed by Buyer or any Affiliate of Buyer to Guarantor or any Affiliate of Guarantor, in each case whether direct or indirect, absolute or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or and other indebtedness at any time owing by Buyer, any Affiliate of Buyer or any Indemnified Person such Lender to or for the credit or the account of Guarantor or any Affiliate of Guarantor, without prejudice to Buyer’s right to recover any deficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is hereby authorized upon any amount becoming due and payable by Guarantor or any Affiliate of Guarantor to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice Guarantor or any Affiliate of Guarantor, any such notice being expressly waived by Guarantor and each Affiliate of Guarantor to the extent permitted by any Requirements of Law, to set-off, appropriate, apply and enforce such right of set-off Borrower against any and all items hereinabove referred to against any amounts owing to Buyer of the Obligations of the Borrower now or any Indemnified Person hereafter existing under this Credit Agreement held by Guarantor or any Affiliate of Guarantor under the Repurchase Documents and the Repurchase Obligationssuch Lender, irrespective of whether Buyer, any Affiliate of Buyer or any Indemnified Person not such Lender shall have made any demand under this Credit Agreement and, with the Repurchase Documents approval of the Required Lenders, although such Obligations may be unmatured. The rights of each Lender under this Section 16.1 are in addition to other rights and regardless remedies (including other rights of any setoff) which such Lender may have. Each of the Lenders agree with each other collateral securing Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such amountsLender, other than Indebtedness evidenced by the Notes held by such Lender 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 held by such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, 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, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all cases without waiver of the Lenders with respect to the Notes held 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 prejudice otherwise as shall result in each Lender receiving in respect of Buyer’s rights to recover the Notes held by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any deficiency. Guarantor part of such excess payment is thereafter recovered from such Lender, such disposition and all Affiliates of Guarantor arrangements shall be deemed directly indebted to Buyer rescinded and the other Indemnified Persons in amount restored to the full amount extent of all amounts owing to Buyer and the other Indemnified Parties by Guarantor and all Affiliates of Guarantor under the Repurchase Documents and the Repurchase Obligationssuch recovery, and Buyer and the other Indemnified Persons shall be entitled to exercise the rights of set-off provided for above. ANY AND ALL RIGHTS TO REQUIRE BUYER OR OTHER INDEMNIFIED PERSONS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS OR OTHER INDEMNIFIED PERSONS UNDER THE REPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET-OFF, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY GUARANTOR AND EACH AFFILIATE OF GUARANTORbut without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lexmark International Inc /Ky/)