Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases. (a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto and their respective successors and assigns, except that the Company may not assign its rights or obligations hereunder, under the Notes or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without in any way limiting the rights of Transferees hereunder, the Company agrees that each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant shall be deemed to be or have the rights and obligations of a Lender hereunder except as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan Document. (b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Whenever in this Agreement or any other Loan Agreement any of the parties hereto or thereto is referred to, such reference shall be deemed to refer to the successors and any permitted assigns of such party and this Agreement and the other Loan Documents shall be binding upon and ----------------------------- inure to the benefit of the parties each party hereto and their the respective successors and assignsassigns of each of them, except that the Company may not assign its rights or delegate its obligations hereunder, under the Notes hereunder or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender Banks.
(b) Any Bank may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender Bank to an Affiliate of such Lender Bank or to another Lender)Bank) of the Agent and, prior to the occurrence of an Event of Default, the Company, which consent shall not be unreasonably withheld, sellassign its rights and delegate its obligations under this Agreement and any other Loan Document, assignincluding, transfer without limitation, all or otherwise dispose of any portion of its Commitment (with a proportionate share Commitment, its Revolving Note, its Loans and any other Obligation owned by it, to one or more banks, financial institutions or other Person generally engaged in the business of making, purchasing or otherwise investing in commercial loans in the ordinary course of its outstanding Loansbusiness, PROVIDED, that the aggregate amount of the Commitment which is the subject of the assignment shall be $10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) orin the case of an assignment by one Bank to another Bank, if in which case the aggregate amount of the Commitment which is the subject of the assignment shall be $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (II) in the case of the assignment by any Bank of its Commitment in full, and PROVIDED, that following any such assignment, the transferring Bank shall continue to hold a Commitment in an aggregate amount not less than $10,000,000, unless it has terminatedassigned its Commitment in full, its outstanding Loans and (each such grant of a participation ii) sell participations therein to one or interest so soldmore banks, assignedfinancial institutions, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other corporate lenders or mutual funds ("Transferees")other sophisticated investors. Upon any assignment and delegation as contemplated in Any such assignee under clause (iii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, a Bank hereunder and the transferring Lender assigning Bank shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without Upon any assignment and delegation as contemplated in any way limiting clause (i) of the rights second preceding sentence, (A) the Agent shall revise Schedule 1.01(a) to reflect such assignment and delegation and distribute such revised Schedule 1.01(a) to the Company and the Banks, (B) the Company shall, at the request of Transferees hereundereither the assignor or assignee Bank, execute and deliver new Revolving Notes to the assignor Bank (if it retains a Commitment following such assignment) and the assignee Bank, in the principal amount of their respective Commitments, and (C) the assignor Bank shall pay to the Agent an assignment fee in the amount of $3,000. Upon the delivery of such new Revolving Notes, the Company agrees that each Transferee assignor Bank shall be entitled return to the benefits of Sections 2.05 and 2.06 to the extent of Company its Transferred Interest as if it were a "Lender" holding a Commitment Revolving Note in an amount equal effect prior to such Transferred Interest, assignment and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Companydelegation. Notwithstanding the sale by a Lender of any such participation hereunderunder clause (ii) of the fifth preceding sentence, (ix) no such participant shall be deemed to be or have the rights and obligations of a Lender Bank hereunder except that any such participant shall have a right of setoff under Section 2.28 as provided in if it were a Bank and the preceding sentence amount of its participation were owing directly to such participant by the Company obligated thereon and (iiy) no Lender shalleach Bank, in connection with selling any such participation, shall not condition such Lender's its rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A1) any reduction in the amount of any principal of, or the amount of or rate of interest onor fee in connection with, its Commitment or any Note Obligation, or Loan in which such participation is sold, (B2) any postponement extension of the date fixed for termination of its Commitment or the maturity of any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentObligation.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Sources: Credit Agreement (Best Buy Co Inc)
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto and their respective successors and assigns, except that the Company may not assign its rights or obligations hereunder, under the Notes or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks y)banks chartered under the laws of the United States or any State thereof or (z) insurance z)insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without in any way limiting the rights of Transferees hereunder, the Company agrees that each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no i)no participant shall be deemed to be or have the rights and obligations of a Lender hereunder except as provided in the preceding sentence and (ii) no ii)no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any A)any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any B)any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the C)the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan Document.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any -------- such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, -------- ------- after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Whenever in this Agreement or any other Loan Agreement any of the parties hereto or thereto is referred to, such reference shall be deemed to refer to the successors and any permitted assigns of such party and this Agreement and the other Loan Documents shall be binding upon and ----------------------------- inure to the benefit of the parties each party hereto and their the respective successors and assignsassigns of each of them, except that the Company may not assign its rights or delegate its obligations hereunder, under the Notes hereunder or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender Majority Banks.
(b) Any Bank may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender Bank to an Affiliate of such Lender Bank or to another Lender)Bank) of the Agent and, prior to the occurrence of an Event of Default, the Company, which consent shall not not, from and after October 15, 1995, be unreasonably withheld, sellassign its rights and delegate its obligations under this Agreement and any other Loan Document, assignincluding, transfer without limitation, all or otherwise dispose of any portion of its Commitment, its Revolving Note, its Loans and any other Obligation owned by it, to one or more banks, financial institutions, corporate lenders or other sophisticated investors, PROVIDED, that the aggregate amount of the Commitment which is the subject of the assignment shall be $10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (with a proportionate share I) in the case of an assignment by one Bank to another Bank, in which case the aggregate amount of the Commitment which is the subject of the assignment shall be $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (II) in the case of the assignment by any Bank of its outstanding LoansCommitment in full, and PROVIDED, that following any such assignment, the transferring Bank shall continue to hold a Commitment in an aggregate amount greater than fifty percent (50%) or, if of the amount of its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws as of the United States date it became a party to this Agreement, unless it has assigned its Commitment in full, and (ii) sell participations therein to one or any State thereof or (z) insurance companiesmore banks, other financial institutions, corporate lenders or mutual funds ("Transferees")other sophisticated investors. Upon any assignment and delegation as contemplated in Any such assignee under clause (iii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, a Bank hereunder and the transferring Lender assigning Bank shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without Upon any assignment and delegation as contemplated in any way limiting clause (i) of the rights second preceding sentence, (A) the Agent shall revise Schedule 1.01 to reflect such assignment and delegation and distribute such revised Schedule 1.01 to the Company and the Banks, (B) the Company shall, at the request of Transferees hereundereither the assignor or assignee Bank, execute and deliver new Revolving Notes to the assignor Bank (if it retains a Commitment following such assignment) and the assignee Bank, in the principal amount of their respective Commitments, and (C) the assignor Bank shall pay to the Agent an assignment fee in the amount of $5,000. Upon the delivery of such new Revolving Notes, the Company agrees that each Transferee assignor Bank shall be entitled return to the benefits Company its Revolving Note in effect prior to such assignment and delegation. No assignment under clause (i) of Sections 2.05 and 2.06 the fourth preceding sentence may assign to the extent assignee Bank a percentage of its Transferred Interest as if it were a "Lender" holding a the Aggregate Base Commitment in an amount equal to such Transferred Interest, and Amount that each Transferee may exercise any and all rights is greater or less than the percentage of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the CompanyAggregate Seasonal Commitment so assigned. Notwithstanding the sale by a Lender of any such participation hereunderunder clause (ii) of the fifth preceding sentence, (ix) no such participant shall be deemed to be or have the rights and obligations of a Lender Bank hereunder except that any such participant shall have a right of setoff under Section 2.29 as provided in if it were a Bank and the preceding sentence amount of its participation were owing directly to such participant by the Company obligated thereon and (iiy) no Lender shalleach Bank, in connection with selling any such participation, shall not condition such Lender's its rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A1) any reduction in the amount of any principal of, or the amount of or rate of interest onor fee in connection with, its Commitment or any Note Obligation, or Loan in which such participation is sold, (B2) any postponement extension of the date fixed for termination of its Commitment or the maturity of any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentObligation.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Sources: Credit Agreement (Best Buy Co Inc)
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto Company, the Agent, the Lenders, all future holders of the Notes, and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations hereunder, under the Notes or under any other Loan Document this Agreement without the prior written consent of all each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in any Loan or other Obligation owing to such Lender, any Note held by such Lender, and any Commitment of such Lender, or any other interest of such Lender hereunder. In the Lenders. Each event of any such sale by a Lender may of participating interests to a Participant, (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and ’s obligations under this Agreement to the extent other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Note for all purposes under this Agreement, (iv) the Company and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) the agreement pursuant to which such Participant acquires its participating interest herein shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations, including, without limitation the right to consent or agree to any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, provided that such agreement may provide that such Lender will not consent or agree to any such amendment, modification, consent or waiver with respect to the matters set forth in Sections 8.1(a)(i)(A) or (B) without the prior consent of such assignmentParticipant. Without in any way limiting the rights of Transferees hereunder, the The Company agrees that if amounts outstanding under this Agreement, the Notes and the Loan Documents are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant Participant shall be deemed to be have, to the extent permitted by applicable law, the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note or have other Loan Document to the rights and obligations same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder except under this Agreement or any Note or other Loan Document; provided, that such right of setoff shall be subject to the obligation of such Participant to share with the Lenders, and the Lenders agree to share with such Participant, as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentSection 2.29.
(bc) From Each Lender may, from time to time, the Company may agree, with the prior written consent of the Agent, and the Company (none of which consents shall be unreasonably withheld; and if an Event of Default shall have occurred and be continuing, then the consent of the Company shall not be required; and if the relevant assignment is made to (i) permit a Lender or an Affiliate of a Lender, the consents of the Agent and the Company shall not be required), assign to increase other lenders (“Assignees”) all or part of its rights or obligations hereunder or under any Loan Document in a minimum aggregate amount of $5,000,000 of the Loans then held by that Lender (or, if less, the entire amount of the Loans then held by that Lender) together with equivalent proportions of its Commitment Amountpursuant to written agreements executed by such assigning Lender, or (ii) add a bank chartered under such Assignee(s), the laws Company and the Agent in substantially the form of Exhibit H, which agreements shall specify in each instance the portion of the United States or any State thereofObligations which is to be assigned to each Assignee and the portion of the Pro Rata Share and Commitment of such Lender to be assumed by each Assignee (each, an insurance company“Assignment Agreement”); provided, another however, that the assigning Lender must pay to the Agent a processing and recordation fee of $3,500. Upon the execution of each Assignment Agreement by the assigning Lender, the relevant Assignee, the Company and the Agent, payment to the assigning Lender by such Assignee of the purchase price for the portion of the Obligations being acquired by it and receipt by the Company of a copy of the relevant Assignment Agreement, (x) such Assignee lender or shall thereupon become a mutual fund (a "New Bank") as a "“Lender" under ” for all purposes of this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Pro Rata Share and a Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this amount set forth in such Assignment Agreement and with all the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of rights, powers and obligations afforded a New Bank as a lender Lender under this Agreement, (y) such assigning Lender shall have no further liability for funding the portion of its Commitment assumed by such Assignee and (z) the address for notices to such Assignee shall be as specified in the Assignment Agreement executed by it. Concurrently with the execution and delivery of each Assignment Agreement, the assigning Lender shall surrender to the Agent shall deliver to the Company and each Note (if any) a portion of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts which is being assigned, and the Company shall execute and deliver a Note (if any such Note is requested by the Assignee) to the Assignee in the amount of its Commitment, and a new Note to the assigning Lender increasing in the amount of its Commitment Amount Commitment, after giving effect to the reduction occasioned by such assignment, any such Notes shall constitute a “Note” for all purposes of this Agreement and of the other Loan Documents.
(d) Each Lender may disclose to any Assignee or Participant and to any prospective Assignee or Participant any and all financial information in such Lender’s possession concerning the New Company or any Subsidiary which has been delivered to such Lender by or on behalf of the Company or any Subsidiary pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Company or any of their Subsidiary in connection with such Lender’s credit evaluation of the Company or any of Subsidiary prior to entering into this Agreement, provided that prior to disclosing such information, such Lender shall first obtain the agreement of such prospective Assignee or Participant to comply with the provisions of Section 8.18.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any note held by it in favor of any federal reserve bank in accordance with Regulation A of the Board or U. S. Treasury Regulation 31 CFR § 203.14, and such Federal Reserve Bank a Notemay enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Best Buy Co Inc)
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto Company, the Agent, the Lenders, all future holders of the Notes, and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations hereunder, under the Notes or under any other Loan Document this Agreement without the prior written consent of all each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in any Loan or other Obligation owing to such Lender, any Note held by such Lender, and any Commitment of such Lender, or any other interest of such Lender hereunder. In the Lenders. Each event of any such sale by a Lender may of participating interests to a Participant, (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and ’s obligations under this Agreement to the extent other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Note for all purposes under this Agreement, (iv) the Company and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) the agreement pursuant to which such Participant acquires its participating interest herein shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations, including, without limitation the right to consent or agree to any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, provided that such agreement may provide that such Lender will not consent or agree to any such amendment, modification, consent or waiver with respect to the matters set forth in Sections 8.1(a)(i)(A) or (B) without the prior consent of such assignmentParticipant. Without in any way limiting the rights of Transferees hereunder, the The Company agrees that if amounts outstanding under this Agreement, the Notes and the Loan Documents are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant Participant shall be deemed to be have, to the extent permitted by applicable law, the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note or have other Loan Document to the rights and obligations same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder except under this Agreement or any Note or other Loan Document; provided, that such right of setoff shall be subject to the obligation of such Participant to share with the Lenders, and the Lenders agree to share with such Participant, as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentSection 2.29.
(bc) From Each Lender may, from time to time, the Company may agree, with the prior written consent of the Agent, and the Company (none of which consents shall be unreasonably withheld; and if an Event of Default shall have occurred and be continuing, then the consent of the Company shall not be required; and if the relevant assignment is made to (i) permit a Lender or an Affiliate of a Lender, the consents of the Agent and the Company shall not be required), assign to increase other lenders (“Assignees”) all or part of its rights or obligations hereunder or under any Loan Document in a minimum aggregate amount of $5,000,000 of the Loans then held by that Lender (or, if less, the entire amount of the Loans then held by that Lender) together with equivalent proportions of its Commitment Amountpursuant to written agreements executed by such assigning Lender, or (ii) add a bank chartered under such Assignee(s), the laws Company and the Agent in substantially the form of Exhibit H, which agreements shall specify in each instance the portion of the United States or any State thereofObligations which is to be assigned to each Assignee and the portion of the Pro Rata Share and Commitment of such Lender to be assumed by each Assignee (each, an insurance company“Assignment Agreement”); provided, another however, that the assigning Lender must pay to the Agent a processing and recordation fee of $3,500. Upon the execution of each Assignment Agreement by the assigning Lender, the relevant Assignee, the Company and the Agent, payment to the assigning Lender by such Assignee of the purchase price for the portion of the Obligations being acquired by it and receipt by the Company of a copy of the relevant Assignment Agreement, (x) such Assignee lender or shall thereupon become a mutual fund (a "New Bank") as a "“Lender" under ” for all purposes of this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Pro Rata Share and a Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this amount set forth in such Assignment Agreement and with all the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of rights, powers and obligations afforded a New Bank as a lender Lender under this Agreement, (y) such assigning Lender shall have no further liability for funding the portion of its Commitment assumed by such Assignee and (z) the address for notices to such Assignee shall be as specified in the Assignment Agreement executed by it. Concurrently with the execution and delivery of each Assignment Agreement, the assigning Lender shall surrender to the Agent shall deliver to the Company and each Note (if any) a portion of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts which is being assigned, and the Company shall execute and deliver a Note (if any such Note is requested by the Assignee) to the Assignee in the amount of its Commitment, and a new Note to the assigning Lender increasing in the amount of its Commitment Amount Commitment, after giving effect to the reduction occasioned by such assignment, any such Notes shall constitute a “Note” for all purposes of this Agreement and of the other Loan Documents.
(d) Each Lender may disclose to any Assignee or Participant and to any prospective Assignee or Participant any and all financial information in such Lender’s possession concerning the New Company or any Subsidiary which has been delivered to such Lender by or on behalf of the Company or any Subsidiary pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Company or any of their Subsidiary in connection with such Lender’s credit evaluation of the Company or any of Subsidiary prior to entering into this Agreement, provided that prior to disclosing such information, such Lender shall first obtain the agreement of such prospective Assignee or Participant to comply with the provisions of Section 8.18.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any note held by it in favor of any federal reserve bank in accordance with Regulation A of the Board or U. S. Treasury Regulation 57 31 CFR § 203.14, and such Federal Reserve Bank a Notemay enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) . This Agreement shall be binding upon and ----------------------------- inure to the benefit of the ------- parties hereto and their respective successors and assigns, except that the Company may not assign its rights or obligations hereunder, under the Notes Note or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender may (ia) grant participations in any portion of its Note and its CommitmentCommitments; and (iib) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment Commitments (with a proportionate share of its outstanding LoansLoans under such Commitments) or, if its Commitment has Commitments have terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (yi) banks chartered under the laws of the United States or any State thereof or (zii) insurance companies, other lenders banks or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each any Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment. Upon any assignment and delegation as contemplated in the preceding sentence, (A) the Agent shall revise Schedule 1.01(a) to reflect such assignment and delegation and distribute such revised Schedule 1.01(a) to the Company and the Lender, (B) the Company shall, at the request of either the assignor or assignee Lender, execute and deliver a new Note to the assignor Lender (if it retains a Warehousing Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Warehousing Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $3,500. Without in any way limiting the rights of Transferees hereunder, the Company agrees that each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant shall be deemed to be or have the rights and obligations of a Lender hereunder except as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan Document.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.-45-
Appears in 1 contract
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto and their respective successors and assigns, except that the Company may not assign its rights or obligations hereunder, under the Notes or under any other Loan Document without the prior written consent of all of the Required Lenders. Each Lender may (i) grant participations in any portion of its Note or Notes and its CommitmentCommitment or Commitments; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not not, from and after September 30, 1997, be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment or Commitments (with a proportionate share of its outstanding Loans) or, if its Commitment has or Commitments have terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Warehousing Commitment or Working Capital Commitment, as applicable, following such assignment) and the assignee Lender, in the principal amount of their respective Warehousing Commitment or Working Capital Commitments, as applicable, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,5003,000. In addition, each the Lender may pledge any portion of its Note or Notes for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without in any way limiting the rights of Transferees hereunder, the Company agrees that each Transferee shall be entitled to the benefits of Sections 2.05 2.07 and 2.06 2.08 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment or Commitments, as the case may be, in an aggregate amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant shall be deemed to be or have the rights and obligations of a Lender hereunder except as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan Document.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Warehousing Commitment Amount, or (ii) permit a Lender to increase its Working Capital Commitment Amount, and (iii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.United
Appears in 1 contract
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto Company, the Agent, the Lenders, all future holders of the Notes, and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations hereunder, under the Notes or under any other Loan Document this Agreement without the prior written consent of all each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in any Loan or other Obligation owing to such Lender, any Note held by such Lender, and any Commitment of such Lender, or any other interest of such Lender hereunder. In the Lenders. Each event of any such sale by a Lender may of participating interests to a Participant, (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and ’s obligations under this Agreement to the extent other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Note for all purposes under this Agreement, (iv) the Company and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) the agreement pursuant to which such Participant acquires its participating interest herein shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations, including, without limitation the right to consent or agree to any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, provided that such agreement may provide that such Lender will not consent or agree to any such amendment, modification, consent or waiver with respect to the matters set forth in Sections 8.1(a)(i)(A) or (B) without the prior consent of such assignmentParticipant. Without in any way limiting the rights of Transferees hereunder, the The Company agrees that if amounts outstanding under this Agreement, the Notes and the Loan Documents are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Transferee shall be entitled to the benefits of Sections 2.05 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Company. Notwithstanding the sale by a Lender of any participation hereunder, (i) no participant Participant shall be deemed to be have, to the extent permitted by applicable law, the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note or have other Loan Document to the rights and obligations same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder except under this Agreement or any Note or other Loan Document; provided, that such right of setoff shall be subject to the obligation of such Participant to share with the Lenders, and the Lenders agree to share with such Participant, as provided in the preceding sentence and (ii) no Section 2.20. Each Lender shallmay, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan Document.
(b) From from time to time, the Company may agree, with the prior written consent of the Agent, and the Company (none of which consents shall be unreasonably withheld; and if an Event of Default shall have occurred and be continuing, then the consent of the Company shall not be required; and if the relevant assignment is made to (i) permit a Lender or an Affiliate of a Lender, the consents of the Agent and the Company shall not be required), assign to increase other lenders (“Assignees”) all or part of its rights or obligations hereunder or under any Loan Document in a minimum aggregate amount of $2,500,000 of the Loans then held by that Lender (or, if less, the entire amount of the Loans then held by that Lender) together with equivalent proportions of its Commitment Amountpursuant to written agreements executed by such assigning Lender, such Assignee(s), the Company and the Agent in substantially the form of Exhibit E or (ii) add a bank chartered under such other form as may be approved from time to time by the laws Agent, which agreements shall specify in each instance the portion of the United States or any State thereofObligations which is to be assigned to each Assignee and the portion of the Pro Rata Share and Commitment of such Lender to be assumed by each Assignee (each, an insurance company“Assignment Agreement”); provided, another however, that the assigning Lender must pay to the Agent a processing and recordation fee of $3,500. Upon the execution of each Assignment Agreement by the assigning Lender, the relevant Assignee, the Company and the Agent, payment to the assigning Lender by such Assignee of the purchase price for the portion of the Obligations being acquired by it and receipt by the Company of a copy of the relevant Assignment Agreement, (x) such Assignee lender or shall thereupon become a mutual fund (a "New Bank") as a "“Lender" under ” for all purposes of this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Pro Rata Share and a Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this amount set forth in such Assignment Agreement and with all the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of rights, powers and obligations afforded a New Bank as a lender Lender under this Agreement, (y) such assigning Lender shall have no further liability for funding the portion of its Commitment assumed by such Assignee and (z) the address for notices to such Assignee shall be as specified in the Assignment Agreement executed by it. Concurrently with the execution and delivery of each Assignment Agreement, the assigning Lender shall surrender to the Agent shall deliver to the Company and each Note (if any) a portion of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts which is being assigned, and the Company shall execute and deliver a Note (if any such Note is requested by the Assignee) to the Assignee in the amount of its Commitment, and a new Note to the assigning Lender increasing in the amount of its Commitment Amount Commitment, after giving effect to the reduction occasioned by such assignment, any such Notes shall constitute a “Note” for all purposes of this Agreement and of the other Loan Documents.
(c) Each Lender may disclose to any Assignee or Participant and to any prospective Assignee or Participant any and all financial information in such Lender’s possession concerning the New Company or any Subsidiary which has been delivered to such Lender by or on behalf of the Company or any Subsidiary pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Company or any of their Subsidiary in connection with such Lender’s credit evaluation of the Company or any of Subsidiary prior to entering into this Agreement, provided that prior to disclosing such information, such Lender shall first obtain the agreement of such prospective Assignee or Participant to comply with the provisions of Section 8.17 or a confidentiality agreement at least as restrictive as the provisions of Section 8.17.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any note held by it in favor of any federal reserve bank in accordance with Regulation A of the Board or U. S. Treasury Regulation 31 CFR § 203.14, and such Federal Reserve Bank a Notemay enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Whenever in this Agreement or any other Loan Agreement any of the parties hereto or thereto is referred to, such reference shall be deemed to refer to the successors and any permitted assigns of such party and this Agreement and the other Loan Documents shall be binding upon and ----------------------------- inure to the benefit of the parties each party hereto and their the respective successors and assignsassigns of each of them, except that the Company may not assign its rights or delegate its obligations hereunder, under the Notes hereunder or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender Banks.
(b) Any Bank may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except no consent shall be required in the case of an assignment by any Lender Bank to an Affiliate of such Lender Bank or to another Lender)Bank) of the Agent and, prior to the occurrence of an Event of Default, the Company, which consent consents shall not be unreasonably withheldwithheld or delayed, sellassign its rights and delegate its obligations under this Agreement and any other Loan Document, assignincluding, transfer without limitation, all or otherwise dispose of any portion of its Commitment (with a proportionate share Commitment, its Revolving Note, its Loans and any other Obligation owned by it, to one or more banks, financial institutions or other Person generally engaged in the business of making, purchasing or otherwise investing in commercial loans in the ordinary course of its outstanding Loansbusiness, PROVIDED, that the aggregate amount of the Commitment which is the subject of the assignment shall be $10,000,000 or an integral multiple of $1,000,000 in excess thereof, except (I) orin the case of an assignment by one Bank to another Bank or an Affiliate of a Bank, if in which case the aggregate amount of the Commitment which is the subject of the assignment shall be $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (II) in the case of the assignment by any Bank of its Commitment in full, and PROVIDED, that following any such assignment, the transferring Bank shall continue to hold a Commitment in an aggregate amount not less than $10,000,000, unless it has terminatedassigned its Commitment in full, its outstanding Loans and (each such grant of a participation ii) sell participations therein to one or interest so soldmore banks, assignedfinancial institutions, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other corporate lenders or mutual funds ("Transferees")other sophisticated investors. Upon any assignment and delegation as contemplated in Any such assignee under clause (iii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, a Bank hereunder and the transferring Lender assigning Bank shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without Upon any assignment and delegation as contemplated in any way limiting clause (i) of the rights of Transferees hereundersecond preceding sentence, (A) the Agent shall revise Schedule 1.01(a) to reflect such assignment and delegation and distribute such revised Schedule 1.01(a) to the Company agrees that each Transferee shall be entitled and the Banks, (B) the Company shall, at the request of either the assignor or assignee Bank, execute and deliver new Revolving Notes to the benefits assignor Bank (if it retains a Commitment following such assignment) and the assignee Bank, in the principal amount of Sections 2.05 their respective Commitments, and 2.06 (C) the assignor Bank shall pay to the extent Agent an assignment fee in the amount of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest$3,000, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law except with respect to its Transferred Interest as fully as if assignments by a Bank to an Affiliate of such Transferee were a direct lender Bank. Upon the delivery of such new Revolving Notes, the assignor Bank shall return to the CompanyCompany its Revolving Note in effect prior to such assignment and delegation. Notwithstanding the sale by a Lender of any such participation hereunderunder clause (ii) of the fifth preceding sentence, (ix) no such participant shall be deemed to be or have the rights and obligations of a Lender Bank hereunder except that any such participant shall have a right of setoff under Section 2.27 as provided in if it were a Bank and the preceding sentence amount of its participation were owing directly to such participant by the Company obligated thereon and (iiy) no Lender shalleach Bank, in connection with selling any such participation, shall not condition such Lender's its rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A1) any reduction in the amount of any principal of, or the amount of or rate of interest onor fee in connection with, its Commitment or any Note Obligation, or Loan in which such participation is sold, (B2) any postponement extension of the date fixed for termination of its Commitment or the maturity of any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentObligation.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Sources: Credit Agreement (Best Buy Co Inc)
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Whenever in this Agreement or any other Loan Agreement any of the parties hereto or thereto is referred to, such reference shall be deemed to refer to the successors and any permitted assigns of such party and this Agreement and the other Loan Documents shall be binding upon and ----------------------------- inure to the benefit of the parties each party hereto and their the respective successors and assignsassigns of each of them, except that the Company Borrower may not assign its rights or delegate its obligations hereunder, under the Notes hereunder or under any other Loan Document without the prior written consent of all of the Lenders. Each Lender Banks.
(b) Any Bank may (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender Bank to an Affiliate of such Lender Bank or to another Lender)Bank) of the Agent and, prior to the occurrence of an Event of Default, the Borrower, which consent shall not be unreasonably withheld, sellassign its rights and delegate its obligations under this Agreement and any other Loan Document, assignincluding, transfer without limitation, all or otherwise dispose of any portion of its Commitment (with a proportionate share Revolving Commitment, its Revolving Note, its Revolving Loans and any other Obligation owned by it, to one or more banks, financial institutions or other Person generally engaged in the business of making, purchasing or otherwise investing in commercial loans in the ordinary course of its outstanding Loansbusiness, provided, that the aggregate amount of the Revolving Commitment which is the subject of the assignment shall be $10,000,000 or an integral multiple of $10,000,000 in excess thereof, except (I) orin the case of an assignment by one Bank to another Bank, if in which case the aggregate amount of the Commitment which is the subject of the assignment shall be $1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (II) in the case of the assignment by any Bank of its Commitment in full, and provided, that following any such assignment, the transferring Bank shall continue to hold a Commitment in an aggregate amount not less than $10,000,000, unless it has terminatedassigned its Commitment in full, its outstanding Loans and (each ii) sell participations therein to one or more banks, financial institutions or other persons generally engaged in the business and making, purchasing or otherwise investing in commercial loans. Any such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered assignee under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (iii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, a Bank hereunder and the transferring Lender assigning Bank shall be released from its duties and obligations under this Agreement to the extent of such assignment. Without Upon any assignment and delegation as contemplated in any way limiting clause (i) of the rights second preceding sentence, (A) the Agent shall revise Schedule 1.1
(a) to reflect such assignment and delegation and distribute such revised Schedule 1.1
(a) to the Borrower and the Banks, (B) the Borrower shall, at the request of Transferees hereundereither the assignor or assignee Bank, execute and deliver new Revolving Notes to the assignor Bank (if it retains a Revolving Commitment following such assignment) and the assignee Bank, in the principal amount of their respective Revolving Commitments, and (C) the assignor Bank shall pay to the Agent an assignment fee in the amount of $3,500. Upon the delivery of such new Revolving Notes, the Company agrees that each Transferee assignor Bank shall be entitled return to the benefits of Sections 2.05 and 2.06 to the extent of Borrower its Transferred Interest as if it were a "Lender" holding a Commitment Revolving Note in an amount equal effect prior to such Transferred Interest, assignment and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law with respect to its Transferred Interest as fully as if such Transferee were a direct lender to the Companydelegation. Notwithstanding the sale by a Lender of any such participation hereunderunder clause (ii) of the fifth preceding sentence, (ix) no such participant shall be deemed to be or have the rights and obligations of a Lender Bank hereunder except that any such participant shall have a right of setoff under Section 7.3 as provided in if it were a Bank and the preceding sentence amount of its participation were owing directly to such participant by the Borrower obligated thereon and (iiy) no Lender shalleach Bank, in connection with selling any such participation, shall not condition such Lender's its rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A1) any reduction in the amount of any principal of, or the amount of or rate of interest onor fee in connection with, its Revolving Commitment or any Note Obligation, or Loan in which such participation is sold, (B2) any postponement extension of the date fixed for termination of its Revolving Commitment or the maturity of any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentObligation.
(b) From time to time, the Company may agree, with the prior written consent of the Agent, to (i) permit a Lender to increase its Commitment Amount, or (ii) add a bank chartered under the laws of the United States or any State thereof, an insurance company, another lender or a mutual fund (a "New Bank") as a "Lender" under this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this Agreement and the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of a New Bank as a lender under this Agreement, the Agent shall deliver to the Company and each of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts and the Company shall execute and deliver to the Lender increasing its Commitment Amount or the New Bank a Note.
Appears in 1 contract
Sources: Credit Agreement (Graco Inc)
Binding Effect Assignments and Participations. Transferees; New ---------------------------------------------------------------- Lenders; Commitment Increases.
(a) This Agreement shall be binding upon and ----------------------------- inure to the benefit of the parties hereto Company, the Agent, the Banks, all future holders of the Notes, and their respective successors and assigns, except that the Company may not assign or transfer any of its rights or obligations hereunder, under the Notes or under any other Loan Document this Agreement without the prior written consent of all each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in a minimum aggregate amount of $5,000,000 in any Loan or other Obligation owing to such Bank, any Revolving Note held by such Bank, and any Commitment of such Bank, or any other interest of such Bank hereunder. In the Lenders. Each Lender may event of any such sale by a Bank of participating interests to a Participant, (i) grant participations in any portion of its Note and its Commitment; and (ii) with the prior written consent of the Agent (except in the case of an assignment by any Lender to an Affiliate of such Lender or to another Lender), which consent shall not be unreasonably withheld, sell, assign, transfer or otherwise dispose of any portion of its Commitment (with a proportionate share of its outstanding Loans) or, if its Commitment has terminated, its outstanding Loans (each such grant of a participation or interest so sold, assigned, transferred or disposed of being herein called a "Transferred Interest") to (y) banks chartered under the laws of the United States or any State thereof or (z) insurance companies, other lenders or mutual funds ("Transferees"). Upon any assignment and delegation as contemplated in clause (ii) of the preceding sentence, (A) the Agent shall revise Schedule 1.01(b) to reflect such assignment and delegation and distribute such revised Schedule 1.01(b) to the Company and the Lenders, (B) the Company shall, at the request of either the assignor or assignee Lenders, execute and deliver new Notes to the assignor Lender (if it retains a Commitment following such assignment) and the assignee Lender, in the principal amount of their respective Commitments, and (C) the assignor Lender shall pay to the Agent an assignment fee in the amount of $2,500. In addition, each Lender may pledge any portion of its Note for security purposes to any Federal Reserve Bank. If a Lender makes any assignment to a Transferee, then such Transferee, to the extent of such assignment (unless otherwise provided therein), shall become a "Lender" hereunder and shall have all the rights and obligations of the Lenders hereunder, and the transferring Lender shall be released from its duties and ’s obligations under this Agreement to the extent other parties to this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible for the performance thereof, (iii) such Bank shall remain the holder of any such Revolving Note for all purposes under this Agreement, (iv) the Company and the Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement and (v) the agreement pursuant to which such Participant acquires its participating interest herein shall provide that such Bank shall retain the sole right and responsibility to enforce the Obligations, including, without limitation the right to consent or agree to any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, provided that such agreement may provide that such Bank will not consent or agree to any such amendment, modification, consent or waiver with respect to the matters set forth in Sections 8.1(a)(i)(A) or (B) without the prior consent of such assignmentParticipant. Without in any way limiting the rights of Transferees hereunder, the The Company agrees that if amounts outstanding under this Agreement, the Revolving Notes and the Loan Documents are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Transferee Participant shall be deemed to have, to the extent permitted by applicable law, the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Revolving Note or other Loan Document to the same extent as if the amount of its participating interest were owing directly to it as a Bank under this Agreement or any Revolving Note or other Loan Document; provided, that such right of setoff shall be subject to the obligation of such Participant to share with the Banks, and the Banks agree to share with such Participant, as provided in Section 2.23. The Company also agrees that each Participant shall be entitled to the benefits of Sections 2.05 subsections 2.23, 2.24, 2.25, 2.26 and 2.06 to the extent of its Transferred Interest as if it were a "Lender" holding a Commitment in an amount equal to such Transferred Interest, and that each Transferee may exercise any and all rights of banker's lien, setoff and counterclaim available pursuant to law 8.3 with respect to its Transferred Interest as fully as if such Transferee were a direct lender to participation in the Company. Notwithstanding the sale by a Lender of any participation hereunderCommitments and Loans provided, (i) that no participant Participant shall be deemed entitled to be or receive any greater amount pursuant to such subsections than the transferor Bank would have the rights and obligations been entitled to receive in respect of a Lender hereunder except as provided in the preceding sentence and (ii) no Lender shall, in connection with selling any such participation, condition such Lender's rights in connection with consenting to amendments or granting waivers concerning any matter under any Loan Document upon obtaining the consent of such participant other than on matters relating to (A) any reduction in the amount of any principal of, or the amount of or rate of interest on, any Note or Loan in which participation transferred by such participation is sold, (B) any postponement of the date fixed for any payment of principal of or interest on any Note or Loan, or the termination of any Commitment, in which transferor Bank to such participation is sold, or (C) the release or subordination of any material portion of any collateral other than pursuant to the terms of any Loan DocumentParticipant had no such transfer occurred.
(bc) From Each Bank may, from time to time, the Company may agree, with the prior written consent of the Agent, U.S. Bank and the Company (none of which consents shall be unreasonably withheld; and if an Event of Default shall have occurred and be continuing, then the consent of the Company shall not be required), assign to other lenders (i“Assignees”) permit all or part of its rights or obligations hereunder or under any Loan Document in a Lender to increase minimum aggregate amount of $5,000,000 evidenced by any Revolving Note then held by that Bank (or, if less, the entire amount evidenced by the Revolving Notes then held by that Bank) together with equivalent proportions of its Commitment Amountpursuant to written agreements executed by such assigning Bank, or (ii) add a bank chartered under such Assignee(s), the laws Company, U.S. Bank and the Agent in substantially the form of Exhibit E, which agreements shall specify in each instance the portion of the United States or any State thereofObligations evidenced by the Revolving Notes which is to be assigned to each Assignee and the portion of the Pro Rata Share and Commitment of such Bank to be assumed by each Assignee (each, an insurance company“Assignment Agreement”); provided, another however, that the assigning Bank must pay to the Agent a processing and recordation fee of $3,500. Upon the execution of each Assignment Agreement by the assigning Bank, the relevant Assignee, the Company, U.S. Bank and the Agent, payment to the assigning Bank by such Assignee of the purchase price for the portion of the Obligations being acquired by it and receipt by the Company of a copy of the relevant Assignment Agreement, (x) such Assignee lender or shall thereupon become a mutual fund (a "New “Bank") as a "Lender" under ” for all purposes of this Agreement with a Commitment, for the purpose of increasing the aggregate amount of the Commitments; provided that upon giving -------- effect to any such new Commitment, the Pro Rata Share and a Commitment Amount of the New Bank shall not be less than $10,000,000; and provided, further, that the aggregate -------- ------- Commitment Amounts, after giving effect to any such increase, shall not exceed $400,000,000. The Company and each Lender increasing its Commitment Amount or New Bank shall agree on the date as of which the increased Commitment Amount or the New Bank's Commitment Amount shall become effective, and each New Bank shall execute and deliver an instrument in the form prescribed by the Agent to evidence its agreement to be bound by this amount set forth in such Assignment Agreement and with all the other Loan Documents. Upon the effective date of an increase in any Lender's Commitment Amount or inclusion of rights, powers and obligations afforded a New Bank as a lender under this Agreement, (y) such assigning Bank shall have no further liability for funding the portion of its Commitment assumed by such Assignee and (z) the address for notices to such Assignee shall be as specified in the Assignment Agreement executed by it. Concurrently with the execution and delivery of each Assignment Agreement, the assigning Bank shall surrender to the Agent shall deliver to the Company and each Revolving Note portion of the Lenders a revised Schedule 1.01(b) reflecting the revised aggregate Commitment Amounts which is being assigned, and the Company shall execute and deliver a Revolving Note to the Lender increasing Assignee in the amount of its Commitment Amount Commitment, and a new Revolving Note to the assigning Bank in the amount of its Commitment, after giving effect to the reduction occasioned by such assignment, such Revolving Notes to constitute “Revolving Notes” for all purposes of this Agreement and of the other Loan Documents.
(d) Notwithstanding any other provision in this Agreement, any Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any note held by it in favor of any federal reserve bank in accordance with Regulation A of the New Board or U. S. Treasury Regulation 31 CFR § 203.14, and such Federal Reserve Bank a Notemay enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Sources: Credit Agreement (Best Buy Co Inc)