COMMITMENTS AND LOAN FACILITY Sample Clauses
COMMITMENTS AND LOAN FACILITY. 13 ARTICLE III CONDITIONS PRECEDENT TO EFFECTIVENESS AND LOAN FUNDINGS 19
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
Advances, Investments and Loans Each Obligor will not, and will not permit any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) to, directly or indirectly, lend money or credit or make advances to any person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other person (all of the foregoing, “Investments”), except that the following shall be permitted: (a) the Parent and its Subsidiaries may acquire and hold accounts receivables arising in the ordinary course of business and owing to any of them; (b) the Parent and its Subsidiaries may acquire and hold Cash Equivalents, provided that at any time there are Revolving Facility Outstandings and/or Swingline Facility Outstandings, the aggregate amount of Cash Equivalents permitted to be held by Parent and its Subsidiaries shall not exceed €50,000,000 (or its equivalent in other currencies) for any period of five (5) consecutive Business Days; (c) the Parent and its Subsidiaries may make loans and advances in the ordinary course of business to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed €10,000,000 (or its equivalent in other currencies); (d) the Parent and its Subsidiaries may enter into Other Interest Hedging Agreements to the extent permitted in Clause 26.4(d) (Indebtedness); (e) the Parent and its Subsidiaries may enter into and perform their obligations under Other Currency/Commodity Hedging Agreements entered into in the ordinary course of business so long as any such Other Currency/Commodity Hedging Agreement is not speculative in nature and is (i) related to income derived from foreign sales or operations of the Parent or any Subsidiary or otherwise related to purchases permitted hereunder from foreign suppliers, (ii) entered into to protect the Parent and/or its Subsidiaries against fluctuations in the prices of raw materials used in their businesses or (iii) entered into to protect the Group’s exposure to adverse movements in foreign exchange in relation to the Facilities and any Permitted Subordinated Indebtedness; (f) loans may be made as expressly permitted by paragraphs (e) and (f) of Clause 26.4 (Indebtedness); (g) the Parent and its Subsidiaries may (i) sell or transfer assets to the extent permitted by Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.), and may acquire non-cash consideration in respect thereof to the extent permitted by Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.) and (ii) repurchase Equity Interests in certain of its Subsidiaries to the extent expressly permitted pursuant to Clause 26.2(m) (Consolidation, Merger, Purchase or Sale of Assets, etc.); (h) the Parent may effect Permitted Acquisitions in accordance with the requirements of Clause 26.2(p) (Consolidation, Merger, Purchase or Sale of Assets, etc.) and an amount equal to the cash consideration therefor may be contributed, loaned or advanced to, or invested in, the respective person (which must be the Parent or a Wholly-Owned Subsidiary thereof) making such Permitted Acquisition by the Parent or any of its Wholly-Owned Subsidiaries so long as all amounts so invested are in fact used within ten days of the respective payment to pay such consideration owing in connection with the respective Permitted Acquisition (or if not so used, are returned to the Parent or its respective Wholly-Owned Subsidiary at the end of such five-day period); (i) Investments consisting of guarantees in existence on the Initial Borrowing Date as disclosed in Clause 26.4 (Indebtedness) or arising thereafter as a result of guarantees permitted pursuant to Clause 26.4 (Indebtedness); (j) the Parent and its Subsidiaries may, in the ordinary course of business, acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganisation of, or in settlement of delinquent obligations of, their suppliers and customers; (k) in addition to Investments otherwise permitted above, the Parent and its Subsidiaries may hold (i) their interests in their respective Subsidiaries and (ii) Investments as are in effect on the Initial Borrowing Date which are set out in Part VII of Schedule 10 (Existing Investments); (l) (i) the Parent and the Qualified Obligors may make cash common equity contributions to the capital of Wholly-Owned Subsidiaries of the Parent which are also Qualified Obligors, provided that in the event that any Qualified Obligor in which an investment is made pursuant to this paragraph (l) ceases to constitute a Wholly-Owned Subsidiary of the Parent which is a Qualified Obligor, any remaining Investment therein by the Parent or any of its Subsidiaries will be required to be independently justified under another clause of this Clause 26.5 and (ii) Wholly-Owned Subsidiaries may make cash equity investments (including, for this purpose, preferred equity investments) in Non-Guarantor Subsidiaries (A) to the extent all proceeds of such equity investment are immediately thereafter used by such Non-Guarantor Subsidiary to repay in cash outstanding Intercompany Loans in a like amount previously made by a Qualified Obligor (and otherwise permitted hereunder) to such Non-Guarantor Subsidiary and (B) so long as any Equity Interest issued as consideration for such equity investment is promptly pledged to the Security Trustee for the benefit of the Finance Parties to the extent required by Clause 25.7 (Additional Security and Further Assurances) or any Security Document; (m) Non-Guarantor Subsidiaries may make cash common equity contributions to the capital of other Non-Guarantor Subsidiaries, provided that in the event that any Non-Guarantor Subsidiary which has received a common equity contribution pursuant to this paragraph (m) ceases to constitute a Subsidiary of the Parent, any remaining Investment therein by the Parent or any of its Subsidiaries will be required to be independently justified under another clause of this Clause 26.5; and (n) so long as no Default or Event of Default then exists or would exist after giving effect thereto, the Parent and its Subsidiaries may make additional Investments (which remain outstanding on any date of determination) (i) in the event that the Consolidated Leverage Ratio is greater than 3.75:1.00, not exceeding in aggregate €15,000,000 (or its equivalent in other currencies) and (ii) in the event the Consolidated Leverage Ratio is less than or equal to 3.75:1.00, not exceeding in aggregate €40,000,000 (or its equivalent in other currencies), (and will remain so after the making of each Investment made pursuant to this proviso), it being understood and agreed that, at any time (ii) above is not applicable, Investments made pursuant thereto shall be permitted to remain outstanding, but shall be taken into account in determining whether additional Investments may be made pursuant to this paragraph (n) (without the benefits of (ii) above)).
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.
Swing Loan Commitment (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees to lend to the Borrower (the “Swing Loans”), and the Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is five (5) Business Days prior to the Maturity Date upon notice by the Borrower to the Swing Loan Lender given in accordance with this §2.5, such sums as are requested by the Borrower for the purposes set forth in §2.9 in an aggregate principal amount at any one time outstanding not exceeding the Swing Loan Commitment; provided that in all events (i) no Default or Event of Default shall have occurred and be continuing; and (ii) the outstanding principal amount of the Revolving Credit Loans and Swing Loans (after giving effect to all amounts requested) plus Letter of Credit Liabilities shall not at any time exceed the lesser of (A) the Total Commitment or (B) the Borrowing Base Availability, or cause a violation of the covenants set forth in §9.1, §9.9 or §9.10. Notwithstanding anything to the contrary contained in this §2.5, the Swing Loan Lender shall not be obligated to make any Swing Loan at a time when any other Lender is a Defaulting Lender, unless the Swing Loan Lender is satisfied that the participation therein will otherwise be fully allocated to the Lenders that are Non-Defaulting Lenders consistent with §2.13(c) and the Defaulting Lender shall not participate therein, except to the extent the Swing Loan Lender has entered into arrangements with the Borrower or such Defaulting Lender that are satisfactory to the Swing Loan Lender in its good faith determination to eliminate the Swing Loan Lender’s Fronting Exposure with respect to any such Defaulting Lender, including the delivery of cash collateral. Swing Loans shall constitute “Revolving Credit Loans” for all purposes hereunder. The funding of a Swing Loan hereunder shall constitute a representation and warranty by the Borrower that all of the conditions set forth in §10 and §11 have been satisfied on the date of such funding. The Swing Loan Lender may assume that the conditions in §10 and §11 have been satisfied unless Swing Loan Lender has received written notice from a Lender that such conditions have not been satisfied. Each Swing Loan shall be due and payable within three (3) Business Days of the date such Swing Loan was provided and the Borrower hereby agrees (to the extent not repaid as contemplated by §2.5(d) below) to repay each Swing Loan on or before the date that is three (3) Business Days from the date such Swing Loan was provided. A Swing Loan may not be refinanced with another Swing Loan. (b) The Swing Loans shall be evidenced by a separate promissory note of the Borrower in substantially the form of Exhibit B hereto (the “Swing Note”), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender in the principal face amount equal to the Swing Loan Commitment and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender to make or cause to be made, at or about the time of the Drawdown Date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s Record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s Record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due. (c) The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender a Loan Request executed by an Authorized Officer no later than 11:00 a.m. (Cleveland time) on the requested Drawdown Date specifying the amount of the requested Swing Loan (which shall be in the minimum amount of $1,000,000.00) and providing the wire instructions for the delivery of the Swing Loan proceeds. The Loan Request shall also contain the statements and certifications required by §2.7(i) and (ii). Each such Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept such Swing Loan on the Drawdown Date. Notwithstanding anything herein to the contrary, a Swing Loan shall be a Base Rate Loan and shall bear interest at the Base Rate plus the Applicable Margin. The proceeds of the Swing Loan will be disbursed by wire by the Swing Loan Lender to the Borrower no later than 1:00 p.m. (Cleveland time). (d) The Swing Loan Lender shall, within two (2) Business Days after the Drawdown Date with respect to such Swing Loan, request each Lender, including the Swing Loan Lender, to make a Revolving Credit Loan pursuant to §2.1 in an amount equal to such Lender’s Commitment Percentage of the amount of the Swing Loan outstanding on the date such notice is given. In the event that the Borrower does not notify the Agent in writing otherwise on or before noon (Cleveland Time) on the Business Day of the Drawdown Date with respect to such Swing Loan, Agent shall notify the Lenders that such Loan shall be a LIBOR Rate Loan with an Interest Period of one (1) month, provided that the making of such LIBOR Rate Loan will not be in contravention of any other provision of this Agreement, or if the making of a 1. Unless any of the events described in paragraph (h), (i) or (j) of §12.1 shall have occurred (in which event the procedures of §2.5(e) shall apply), each Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Loan Lender for the account of the Swing Loan Lender at the Agent’s Head Office prior to 12:00 noon (Cleveland time) in funds immediately available no later than the third (3rd) Business Day after the date such notice is given just as if the Lenders were funding directly to the Borrower, so that thereafter such Obligations shall be evidenced by the Revolving Credit Notes. The proceeds of such Revolving Credit Loan shall be immediately applied to repay the Swing Loans. (e) If for any reason a Swing Loan cannot be refinanced by a Revolving Credit Loan pursuant to §2.5(d), each Lender will, on the date such Revolving Credit Loan pursuant to §2.5(d) was to have been made, purchase an undivided participation interest in the Swing Loan in an amount equal to its Commitment Percentage of such Swing Loan. Each Lender will immediately transfer to the Swing Loan Lender in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Lender will deliver to such Lender a Swing Loan participation certificate dated the date of receipt of such funds and in such amount. (f) Whenever at any time after the Swing Loan Lender has received from any Lender such Lender’s participation interest in a Swing Loan, the Swing Loan Lender receives any payment on account thereof, the Swing Loan Lender will distribute to such Lender its participation interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Lender is required to be returned, such Lender will return to the Swing Loan Lender any portion thereof previously distributed by the Swing Loan Lender to it. (g) Each Lender’s obligation to fund a Loan as provided in §2.5(d) or to purchase participation interests pursuant to §2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender or the Borrower may have against the Swing Loan Lender, the Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of REIT, the Borrower or any of their respective Subsidiaries; (iv) any breach of this Agreement or any of the other Loan Documents by the Borrower or any Guarantor or any Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Any portions of a Swing Loan not so purchased or converted may be treated by the Agent and Swing Loan Lender as against such Lender as a Revolving Credit Loan which was not funded by the non-purchasing Lender, thereby making such Lender a Defaulting Lender. Each Swing Loan, once so sold or converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Revolving Credit Loan made by each Lender under its Commitment.