Investments; Indebtedness UDS shall not, and shall not permit any of its Subsidiaries to, (i) make any loans, advances or capital contributions to, or investments in, any other Person, other than (x) loans or investments by UDS or a wholly owned Subsidiary of UDS to or in UDS or any wholly owned Subsidiary of UDS, (y) in the ordinary course of business consistent with past practice which are not, individually or in the aggregate, material to UDS and its Subsidiaries taken as a whole (provided that none of such transactions referred to in this clause (y) presents a material risk of making it more difficult to obtain any approval or authorization required in connection with the Merger under Regulatory Law) or (ii) except in the ordinary course consistent with past practice under UDS's existing authorized commercial paper program, incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of UDS or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person (other than any wholly owned Subsidiary) or enter into any arrangement having the economic effect of any of the foregoing (collectively, "UDS Indebtedness").
Outstanding Indebtedness Neither the Company nor any of its Subsidiaries has outstanding any Indebtedness except as permitted by paragraph 6B. There exists no default under the provisions of any instrument evidencing such Indebtedness or of any agreement relating thereto.
Permitted Indebtedness Borrower shall not create, incur, assume or suffer to exist any Indebtedness, except the following (collectively, "Permitted Indebtedness"): (i) Indebtedness under the Loan Documents, (ii) any Indebtedness set forth on Schedule 7.2, (iii) Capitalized Lease Obligations incurred after the Closing Date and Indebtedness incurred pursuant to purchase money Liens permitted by Section 7.3(v), provided that the aggregate amount of such Capitalized Lease Obligations and purchase money indebtedness outstanding at any time shall not exceed $75,000, (iv) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth on Annex I; provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; (v) accounts payable to trade creditors and current operating expenses (other than for borrowed money) which are not aged more than 120 calendar days from the billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being contested in good faith and by appropriate and lawful proceedings and such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower's independent accountants shall have been reserved; (vi) borrowings incurred in the ordinary course of business and not exceeding $10,000 individually or in the aggregate outstanding at any one time, provided, however, that such Indebtedness shall be on an unsecured basis, subordinated in right of repayment and remedies to all of the Obligations and to all of Lender's rights pursuant to a subordination agreement in form and substance satisfactory to Lender; and (vii)
Indebtedness Create, incur, assume or suffer to exist any Indebtedness, except:
Prepayments of Other Indebtedness Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc 101 Section 6.12. Limitation on Certain Restrictions on Subsidiaries 103 Section 6.13. No Further Negative Pledge 104 Section 6.14. Business 104 Section 6.15. Amendments to Organizational Documents 104 Section 6.16. Limitation on Accounting Changes 104 Section 6.17. Fiscal Periods 104 Page ARTICLE VII GUARANTEE 105 Section 7.01. The Guarantee 105 Section 7.02. Obligations Unconditional 105 Section 7.03. Reinstatement 106 Section 7.04. Subrogation; Subordination 106 Section 7.05. Remedies 107 Section 7.06. Instrument for the Payment of Money 107 Section 7.07. Continuing Guarantee 107 Section 7.08. General Limitation on Guarantee Obligations 107 Section 7.09. Release of Guarantors 107 Section 7.10. Right of Contribution 108 ARTICLE VIII EVENTS OF DEFAULT 108 Section 8.01. Events of Default 108 Section 8.02. [RESERVED] 111 Section 8.03. Borrower’s Right to Cure 111 ARTICLE IX THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT 112 Section 9.01. Appointment 112 Section 9.02. Agent in Its Individual Capacity 113 Section 9.03. Exculpatory Provisions 113 Section 9.04. Reliance by Agent 114 Section 9.05. Delegation of Duties 114 Section 9.06. Successor Agent 115 Section 9.07. Indemnification 116 Section 9.08. Withholding Taxes 117 Section 9.09. [RESERVED] 117 Section 9.10. Lenders’ Representations, Warranties and Acknowledgment 117 Section 9.11. Collateral Documents and Guaranty. 118 Section 9.12. Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim 120 Section 9.13. No Other Duties Etc 120 ARTICLE X MISCELLANEOUS 121 Section 10.01. Notices. 121 Section 10.02. Waivers; Amendment 122 Section 10.03. Expenses; Indemnity; Damage Waiver 126 Section 10.04. Successors and Assigns 128 Section 10.05. Survival of Agreement 137 Section 10.06. Counterparts; Integration; Effectiveness 137 Section 10.07. Severability 137 Section 10.08. Right of Setoff 137 Section 10.09. Governing Law; Jurisdiction; Consent to Service of Process 138 Section 10.10. Waiver of Jury Trial 139 Section 10.11. Headings 139 Section 10.12. Confidentiality 139 Section 10.13. Interest Rate Limitation 140 Section 10.14. Assignment Agreement 140 Page Section 10.15. Obligations Absolute 141 Section 10.16. Waiver of Defenses; Absence of Fiduciary Duties 141 Section 10.17. USA Patriot Act 142 Section 10.18. [RESERVED] 142 Section 10.19. Concerning the ABL Facility 142 ANNEXES Annex I Initial Lenders and Commitments Annex II Initial Lender Addresses SCHEDULES Schedule 1.01(a) Material Indebtedness Schedule 3.05(b) Owned and Leased Property Schedule 3.06 Intellectual Property Matters Schedule 3.07(a) Subsidiaries Schedule 3.16 Environmental Matters Schedule 5.11(d) Real Property Collateral Matters Schedule 5.14 Post-Closing Items Schedule 6.01(b) Existing Indebtedness Schedule 6.02(c) Existing Liens Schedule 6.04(b) Existing Investments EXHIBITS Exhibit A Form of Assignment Agreement Exhibit B Form of Funding Notice Exhibit C Form of Compliance Certificate Exhibit D Form of Intercompany Note Exhibit E Form of Conversion/Continuation Notice Exhibit F United States Tax Compliance Certificate Exhibit G Form of Note Exhibit H Form of Security Agreement Exhibit J Form of Solvency Certificate Exhibit K Form of Guarantee Joinder Agreement Exhibit L Form of ABL Intercreditor Agreement [Exhibits H and L have been omitted as these have been separately filed as exhibits to the Form S-1]. CREDIT AGREEMENT This CREDIT AGREEMENT (this “Agreement”), dated as of May 16, 2012 by and among Five Below, Inc., a Pennsylvania corporation (the “Borrower”), the Guarantors party hereto from time to time, the Lenders, and Xxxxxxx Xxxxx Bank USA (“Xxxxxxx Sachs”), Barclays Bank PLC and Jefferies Finance LLC, as Lead Arrangers and as Lead Bookrunners, Xxxxxxx Sachs as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”) and as Collateral Agent for the Secured Parties (in such capacity, the “Collateral Agent”), Credit Suisse AG, Cayman Islands Branch, Deutsche Bank Trust Company Americas, UBS Securities LLC and Xxxxx Fargo Bank, National Association, as Arrangers (in such capacity and together with the Lead Arrangers, the “Arrangers”) and Bookrunners (in such capacity and together with the Lead Bookrunners, the “Bookrunners”), Barclays Bank PLC, as Syndication Agent (in such capacity, the “Syndication Agent”), and Jefferies Finance LLC, as Documentation Agent (in such capacity, the “Documentation Agent”).
Prepayments, Etc. of Indebtedness (a) None of the Covenant Parties shall, nor shall they permit any of their Restricted Subsidiaries to, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled interest shall be permitted) the Senior Subordinated Debt, any subordinated Indebtedness incurred under Section 7.03(g) or any other Indebtedness that is required to be subordinated to the Obligations pursuant to the terms of the Loan Documents, but excluding any Existing Indebtedness or Outstanding Indebtedness (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the refinancing thereof with the Net Proceeds of any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing and, if such Indebtedness was originally incurred under Section 7.03(g), is permitted pursuant to Section 7.03(g)), to the extent not required to prepay any Loans pursuant to Section 2.05(b), (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Company or any of its direct or indirect parents, (iii) the prepayment of Indebtedness of any Covenant Party or any Restricted Subsidiary of a Covenant Party to the extent permitted by the Collateral Documents, (iv) any payments in respect of Senior Subordinated Debt constituting bridge loans with the proceeds of any other Junior Financing and (v) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed $250,000,000 plus, if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 7.00 to 1.00, the portion, if any, of the Cumulative Credit on such date that Xxxxxxx elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of Xxxxxxx calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied.
Repayment of Loans; Evidence of Indebtedness (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Administrative Agent for the account of each Lender that shall have made any Competitive Loan the then unpaid principal amount of each Competitive Loan of such Lender on the last day of the Interest Period applicable to such Loan.
Prepayments of Indebtedness Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Permitted Indebtedness (other than the Obligations or Indebtedness between Loan Parties), or make any payment in violation of any subordination terms of any Subordinated Indebtedness, except (a) as long as no Event of Default then exists or would arise therefrom, regularly scheduled or mandatory repayments, repurchases, redemptions, defeasances or other satisfaction of Permitted Indebtedness (other than Subordinated Indebtedness), (b) as long as no Event of Default has occurred and is continuing, voluntary prepayments, redemptions, repurchases, defeasances or other satisfaction of Permitted Indebtedness (but excluding any payment in violation of the subordination terms of any Subordinated Indebtedness) (i) in an amount less than $6,000,000 in the aggregate during the Availability Period as long as the Availability Condition is satisfied, or (ii) constituting intercompany Indebtedness owing by a Loan Party to any Subsidiary that is not a Loan Party so long as an amount equal to such amount prepaid, redeemed, purchased or otherwise satisfied is transferred to a Loan Party substantially concurrently with such prepayment, redemption, purchase or other satisfaction, (c) as long as no Event of Default then exists, repayments and prepayments of Subordinated Indebtedness in accordance with the subordination terms thereof, (d) voluntary prepayments, repurchases, redemptions, defeasances or other satisfaction of Permitted Indebtedness (but excluding on account of any Subordinated Indebtedness) as long as the Payment Conditions are satisfied, and (e) any Permitted Amendment/Refinancings of such Indebtedness.
