Advances, Investments and Loans The Borrower will not, and will not permit any of its Restricted Subsidiaries to make loans or advances to, guarantee any obligations of, or make, retain or have outstanding any investments (whether through purchase of Equity Interests or debt obligations) in, any Person or enter into any partnerships or joint ventures, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract (all of the foregoing, collectively, “investments”), except that this Section shall not prevent:
(a) investments constituting receivables created in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments (including debt obligations) received in connection with the bankruptcy or reorganization of a Person and in settlement of delinquent obligations of, and other disputes with, a Person arising in the ordinary course of business;
(i) the Borrower’s equity investments from time to time in its Restricted Subsidiaries, and (ii) investments made from time to time by a Restricted Subsidiary in the Borrower or one (1) or more of its Restricted Subsidiaries; provided that the aggregate amount of any such investments made by any Loan Party in any Restricted Subsidiary which is not a Loan Party plus any intercompany advances by a Loan Party to any Restricted Subsidiary which is not a Loan Party permitted by Section 6.17(e) hereof shall not exceed the greater of $150.0 million and 2.0% of Consolidated Total Assets (measured as of the date of such investment and based upon the financial statements most recently delivered on or prior to such date pursuant to Section 6.1, but giving effect to any Specified Transaction occurring thereafter and on or prior to the date of determination);
(e) intercompany advances (including in the form of a guarantee for the benefit of such Person) made from time to time from (i) the Borrower to any one (1) or more Restricted Subsidiaries, (ii) from one (1) or more Restricted Subsidiaries to the Borrower and (iii) from one (1) or more Restricted Subsidiaries to one (1) or more Restricted Subsidiaries; provided that the aggregate amount of any such advances made by a Loan Party to a Restricted Subsidiary that is not a Loan Party plus any equity investments by any Loan Party in any Restricted Subsidiary which is not a Loan Party permitted by Section 6.17(d) hereof shall not exceed the greater of $150.0 million and 2.0% of Consolidated Total Assets (measured as of the date of such advance and based upon the financial statements most recently delivered on or prior to such date pursuant to Section 6.1, but giving effect to any Specified Transaction occurring thereafter and on or prior to the date of determination);
(f) other investments (including investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries), in each case, as valued at the fair market value of such investment at the time each such investment is made, in an aggregate amount for all such investments under this clause (f) that, at the time such investment is made, would not exceed the sum of (i) the greater of $75.0 million and 1.0% of Consolidated Total Assets (measured as of the date of such investment and based upon the financial statements most recently delivered on or prior to such date pursuant to Section 6.1, but giving effect to any Specified Transaction occurring thereafter and on or prior to the date of determination) plus (ii) the amount of any returns of capital, dividends or other distributions received in connection with such investment (not to exceed the original amount of the investment);
(g) loans and advances to officers, directors, employees and consultants of the Borrower (or its direct or indirect parent company) or any of its Restricted Subsidiaries for reasonable and customary business related travel expenses, entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business and advances of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business; provided that the aggregate amount of such loan in advance outstanding at any time shall not exceed $10.0 million;
(h) investments in Hedge Agreements permitted by Section 6.14(a) and (b);
(i) investments received upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(j) investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(k) guarantees by the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute indebtedness for borrowed money, in each case entered into in the ordinary course of business;
(l) Permitted Acquisitions;
(m) investments in Restricted Subsidiaries for the purpose of consummating transactions permitted under Section 6.16(n) or any Permitted Acquisition;
(n) investments permitted under Sections 6.14, 6.15, 6.16 and 6.18;
(o) other investments, loans and advances in addition to those otherwise permitted by this Section in an amount not to exceed (i) the greater of $225.0 million and 3.0% of Consolidated Total Assets (measured as of the date of such investments, loans or advances and based upon the financial statements most recently delivered on or prior to such date pursuant to Section 6.1, but giving effect to any Specified Transaction occurring thereafter and on or prior to the date of determination) plus (ii) the Growth Amount in the aggregate at any one time outstanding;
(p) investments consisting of consideration received in connection with any disposition or other transfer made in compliance with Section 6.16;
(q) other investments, loans and advances existing as of the Second Restatement Effective Date and set forth on Schedule 6.17 (as the same may be renewed, refinanced or extended from time to time);
(r) investments made by any Restricted Subsidiary that is not a Loan Party to the extent such investments are made with the proceeds received by such Restricted Subsidiary from an investment made by a Loan Party in such Restricted Subsidiary pursuant to this Section 6.17;
(s) investments the sole consideration for which is Equity Interests of Holdco (or any direct or indirect parent of Holdco) or, following the consummation of a Qualified Public Offering of the Borrower, the Borrower;
(t) [Reserved];
(u) intercompany advances made by the Borrower or its Restricted Subsidiaries to the Borrower’s direct or indirect parent company to effectuate a Distribution permitted by either (i) Section 6.18(f)(x) or (ii) Section 6.18(m), in each case, in lieu of making a Distribution in such permitted amounts; and
(v) additional investments by the Borrower or any of its Restricted Subsidiaries; provided that on the date of consummation of such investment or, at the Borrower’s election to the extent such investment is made in connection with an Acquisition, on the date of the signing of any acquisition agreement with respect thereto, (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect thereto the Senior Secured Leverage Ratio does not exceed 5.25:1.00 (calculated on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b)).
Investments and Loans No Company shall: (a) create, acquire or hold any Subsidiary, (b) make or hold any investment in any stocks, bonds or securities of any kind, (c) be or become a party to any joint venture or other partnership, (d) make or keep outstanding any advance or loan to any Person, or (e) be or become a Guarantor of any kind; provided, that this Section shall not apply to:
(i) any endorsement of a check or other medium of payment for deposit or collection through normal banking channels or similar transaction in the normal course of business;
(ii) any investments in cash or Cash Equivalents;
(iii) the holding of Subsidiaries listed on Schedule 7.1 hereto as of the Closing Date;
(iv) intercompany loans to the extent permitted under Section 5.8(d);
(v) any advance or loan to an officer, director or employee of a Company made in the ordinary course of such Company’s business, so long as all such advances and loans from all Companies aggregate not more than the maximum principal sum of $25,000 at any time outstanding;
(vi) the creation, acquisition or holding of any Wholly-Owned Subsidiary that is a Domestic Subsidiary so long as such Subsidiary is in compliance with Section 5.22 of this Agreement;
(vii) extensions of trade credit in the ordinary course of business;
(viii) investments by Borrowers in Hedge Agreements other than for speculative purposes;
(ix) investments acquired by Borrowers (a) in exchange for any other investment held by Borrowers in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other investment or (b) as a result of the foreclosure by Borrowers with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(x) investments, loans and guaranties described on Schedule 5.11 hereto and any renewal or replacement thereof;
(xi) investments that constitute Restricted Payments permitted under Section 5.20 hereof;
(xii) Investments in Capital Expenditures to the extent permitted hereunder;
(xiii) guaranties permitted under Section 5.8 hereof;
(xiv) contributions of capital by any Credit Party to any other Credit Party until such time as Agent or the Required Lenders directs the Credit Parties during the existence of a Default or Event of Default, that no such contribution of capital may be made; or
(xv) other investments in an aggregate amount not to exceed $100,000.
Commitments and Loans Prior to the Restatement Effective Date, certain term loans were previously made to the Borrowers and certain revolving loans were previously made to the Borrowers as “Dollar Tranche Revolving Loans” and “Multicurrency Tranche Revolving Loans” under the Existing Credit Agreement which remain outstanding as of the Restatement Effective Date (such outstanding loans being hereinafter referred to as the “Existing Loans”). Subject to the terms and conditions set forth in this Agreement, the parties hereto agree that on the Restatement Effective Date the Existing Loans shall be re-evidenced as Initial Term Loans and Revolving Loans that are “Dollar Tranche Revolving Loans” and “Multicurrency Tranche Revolving Loans”, as the case may be, under this Agreement and the terms of the Existing Loans shall be restated in their entirety and shall be evidenced by this Agreement. Subject to the terms and conditions set forth herein, (a) each Dollar Tranche Lender (severally and not jointly) agrees to make Dollar Tranche Revolving Loans to the Borrowers in Dollars from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Dollar Tranche Revolving Credit Exposure exceeding such Lender’s Dollar Tranche Commitment or (ii) the sum of the total Dollar Tranche Revolving Credit Exposures exceeding the aggregate Dollar Tranche Commitments, (b) each Multicurrency Tranche Lender (severally and not jointly) agrees to make Multicurrency Tranche Revolving Loans to the Borrowers in Agreed Currencies from time to time during the Availability Period in an aggregate principal amount that will not result in (i) subject to Sections 2.04 and 2.11(b), the Dollar Amount of such Lender’s Multicurrency Tranche Revolving Credit Exposure exceeding such Lender’s Multicurrency Tranche Commitment, (ii) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total Multicurrency Tranche Revolving Credit Exposures exceeding the aggregate Multicurrency Tranche Commitments or (iii) subject to Sections 2.04 and 2.11(b), the sum of the Dollar Amount of the total Multicurrency Tranche Revolving Credit Exposures, in each case denominated in Mexican Pesos, exceeding $500,000,000 and (c) each Additional Term Lender with an Additional Term Loan Commitment (severally and not jointly) agrees to make an Additional Term Loan to the Company in Dollars and to LKQ Netherlands in euro, in each case, on the Restatement Effective Date in an amount equal to the amount of such Lender’s applicable Additional Term Loan Commitment by making immediately available funds available to the Administrative Agent’s designated account, not later than the time specified by the Administrative Agent. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Dollar Tranche Revolving Loans and Multicurrency Tranche Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
The Commitments and Loans Section 2.01 Commitments 53 Section 2.02 Borrowings, Conversions and Continuations of Loans 53 Section 2.03 Letters of Credit 56 Section 2.04 Swing Line Loans 63 Section 2.05 Prepayments 66 Section 2.06 Scheduled Repayment of Loans 68 Section 2.07 Termination and Reduction of Revolving Facility Commitments 68 Section 2.08 Interest 69 Section 2.09 Fees 69 Section 2.10 Computation of Interest and Fees 71 Section 2.11 Evidence of Debt 72 Section 2.12 Payments Generally; Administrative Agent’s Clawback 72 Section 2.13 Sharing of Payments by Lenders 74 Section 2.14 Incremental Loans 75 Section 2.15 Defaulting Lenders 77 Section 2.16 Cash Collateral 80 Section 2.17 Agent Advances; Overadvances 81 Section 2.18 Settlement 82 Section 3.01 Taxes 84 Section 3.02 Illegality 88 Section 3.03 Inability to Determine Rates 88 Section 3.04 Increased Costs 89 Section 3.05 Compensation for Losses 91 Section 3.06 Mitigation Obligations; Replacement of Lenders 91 Section 3.07 Survival 92
ARD Loans Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD Loan starts to amortize no later than the Due Date of the calendar month immediately after the calendar month in which such ARD Loan closed and substantially fully amortizes over its stated term, which term is at least 60 months after the related Anticipated Repayment Date. Each ARD Loan has an Anticipated Repayment Date not less than five years following the origination of such Mortgage Loan. If the related Mortgagor elects not to prepay its ARD Loan in full on or prior to the Anticipated Repayment Date pursuant to the existing terms of the Mortgage Loan or a unilateral option (as defined in Treasury Regulations under Section 1001 of the Code) in the Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the Mortgage Loan’s interest rate will step up to an interest rate per annum as specified in the related Mortgage Loan documents; provided, however, that payment of such Excess Interest shall be deferred until the principal of such ARD Loan has been paid in full; (ii) all or a substantial portion of the excess cash flow (which is net of certain costs associated with owning, managing and operating the related Mortgaged Property) collected after the Anticipated Repayment Date shall be applied towards the prepayment of such ARD Loan and once the principal balance of an ARD Loan has been reduced to zero all excess cash flow will be applied to the payment of accrued Excess Interest; and (iii) if the property manager for the related Mortgaged Property can be removed by or at the direction of the mortgagee on the basis of a debt service coverage test, the subject debt service coverage ratio shall be calculated without taking account of any increase in the related Mortgage Interest Rate on such Mortgage Loan’s Anticipated Repayment Date. No ARD Loan provides that the property manager for the related Mortgaged Property can be removed by or at the direction of the mortgagee solely because of the passage of the related Anticipated Repayment Date.
Loans 3.1. On each Loan Subscription Date, not later than the time specified by Xxxxxx (such time to be posted to the TALF Website in advance of such Loan Subscription Date), each TALF Agent may submit to Lender, in the manner specified by Xxxxxx from time to time, a request for Loans on behalf of each Applicable Borrower proposing to borrow Loans on the next scheduled Loan Closing Date (each such request, a “Loan Request”). Each TALF Agent shall complete the Loan Request in accordance with instructions provided by Custodian from time to time, in the form attached hereto as Appendix 3A or, in the case of a Loan to be secured by CMBS Collateral, Appendix 3B. Lender shall promptly provide Custodian with the information contained in each such Loan Request. Notwithstanding the foregoing, a TALF Agent shall not be permitted to submit a Loan Request unless (x) it has previously delivered to Custodian a copy of the Letter of Agreement pursuant to which it became a party hereto and (y) in the case of a Loan to be secured by Newly Issued CMBS Collateral and with respect to each such Item of Newly Issued CMBS Collateral, the following documents shall have been delivered to Lender and Custodian at or before the stated times: (1) not later than 5:00 p.m. on the eighth Business Day before the applicable Loan Subscription Date, the Offering Materials (as defined below) (which may be in preliminary form to the extent Offering Materials in final form are not then available), (2) not later than 5:00 p.m. on the sixth Business Day prior to the applicable Loan Subscription Date, an AUP Report (TALF) and an AUP Report (Industry) relating to such Offering Materials and (3) not later than the Business Day after any supplement to such Offering Materials is furnished to prospective investors, each such supplement, together with an AUP Report (TALF) and an update to the earlier AUP Report (Industry); provided, that each such supplement and related AUP Report (TALF) and update to AUP Report (Industry) shall be delivered not later than 5:00
Subsequent Advances The obligation of FINOVA to make any advance shall be subject to the further conditions precedent that, on and as of the date of such advance: (a) the representations and warranties of Borrower set forth in this Agreement shall be accurate, before and after giving effect to such advance or issuance and to the application of any proceeds thereof; (b) no Event of Default and no event which, with notice or passage of time or both, would constitute an Event of Default has occurred and is continuing, or would result from such advance or issuance or from the application of any proceeds thereof; (c) no material adverse change has occurred in the Borrower's business, operations, financial condition, in the condition of the Collateral, or other assets of Borrower or in the prospect of repayment of the Obligations; and (d) FINOVA shall have received such other approvals, opinions or documents as FINOVA shall reasonably request.
Swing Loans (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the date hereof to, but not including, the expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Revolving Loans The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
Existing Loans Schedule 2.3(j) lists, as of the date hereof, all (i) secured loans encumbering the Properties or any direct or indirect interest in the applicable Contributed Entity and (ii) any other indebtedness of any Contributed Entity or subsidiary (collectively, the “Disclosed Loans”) and the outstanding aggregate principal balance as of the date set forth on Schedule 2.3(j). To the Knowledge of Contributor, no monetary default (beyond applicable notice and cure periods) by any party exists under any of the Disclosed Loans and the documents entered into in connection therewith (collectively, the “Disclosed Loan Documents”) and no non-monetary default (beyond applicable notice and cure periods) by any party exists under any of the Disclosed Loan Documents.
