Indebtedness and Disqualified Capital Stock. Create, incur, assume or suffer to exist any Indebtedness or Disqualified Capital Stock, except: (a) Indebtedness under the Loan Documents; (b) Indebtedness of (x) any Subsidiary Guarantor to the U.S. Borrower or to any other Subsidiary Guarantor, (y) the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower or any Subsidiary Guarantor owed to Foreign Subsidiaries; provided (i) all such Indebtedness described in clauses (x) and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made; (c) Indebtedness incurred by the U.S. Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the U.S. Borrower or any of its Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such disposition; (d) Indebtedness of the U.S. Borrower and its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the U.S. Borrower and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom; (e) Indebtedness representing deferred compensation to employees of the U.S. Borrower and its Subsidiaries incurred in the ordinary course of business; (f) Indebtedness consisting of obligations of the U.S. Borrower or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions; (g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of obligations for borrowed money) incurred in the ordinary course of business; (i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof; (j) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiaries; (k) (i) guarantees by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03; (l) Indebtedness existing on the Closing Date and listed on Schedule 7.03; (m) purchase money Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount not to exceed $35,000,000 at any time outstanding; (n) obligations (contingent or otherwise) of the U.S. Borrower or any Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into in the ordinary course of business for the purpose of fixing or hedging interest rate, currency or commodity risks and not for purposes of speculation; (o) Indebtedness incurred by the U.S. Borrower to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year of the U.S. Borrower shall not exceed $5,000,000; (p) Indebtedness of one or more Foreign Subsidiaries in an aggregate amount not to exceed at any time $15,000,000; (q) Indebtedness of a Foreign Subsidiary to the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment permitted by Section 7.02(e), (n), (o), (r), (u) or (x); (r) Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $15,000,000; (s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of such Indebtedness is less than or equal to 3.25:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,000; provided that such Indebtedness shall not mature earlier than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, for customary prepayment or repurchase events upon a change in control or an asset sale) prior to the Maturity Date; provided further that, for the avoidance of doubt, no Subsidiary that is not a Subsidiary Guarantor may guarantee or be an obligor with respect to such Indebtedness; (t) Indebtedness under Treasury Management Agreements with Treasury Management Banks; and (u) the Northstar Loan.
Appears in 1 contract
Samples: Credit Agreement (Carters Inc)
Indebtedness and Disqualified Capital Stock. Create, incur, assume or suffer to exist any Indebtedness or Disqualified Capital Stock, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of (x) any Subsidiary Guarantor to the U.S. Borrower or to any other Subsidiary Guarantor, (y) the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower or any Subsidiary Guarantor owed to Foreign Subsidiaries; provided (i) all such Indebtedness described in clauses (x) and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary Guarantor to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(c) Indebtedness incurred by the U.S. Borrower or any of its Restricted Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Restricted Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Restricted Subsidiary of the U.S. Borrower or any of its Restricted Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Restricted Subsidiaries in connection with such disposition;
(d) Indebtedness of the U.S. Borrower and its Restricted Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the U.S. Borrower and its Restricted Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(e) Indebtedness representing deferred compensation to employees of the U.S. Borrower and its Restricted Subsidiaries incurred in the ordinary course of business;
(f) Indebtedness consisting of obligations of the U.S. Borrower or its Restricted Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of obligations for borrowed money) incurred in the ordinary course of business;
(i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(j) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Restricted Subsidiaries;
(k) (i) guarantees by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Restricted Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Restricted Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Restricted Subsidiary of Indebtedness of another Foreign Restricted Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Restricted Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03;
(l) Indebtedness existing on the Closing Date and listed on Schedule 7.03;
(m) purchase money Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount not to exceed $35,000,000 50,000,000 at any time outstanding;
(n) obligations (contingent or otherwise) of the U.S. Borrower or any Restricted Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into in the ordinary course of business for the purpose of fixing or hedging interest rate, currency or commodity risks and not for purposes of speculation;
(o) Indebtedness incurred by the U.S. Borrower to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Restricted Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year of the U.S. Borrower shall not exceed $5,000,000;
(p) Indebtedness of one or more Foreign Subsidiaries that are Restricted Subsidiaries in an aggregate amount not to exceed at any time $15,000,00020,000,000;
(q) Indebtedness of a Foreign Restricted Subsidiary to the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment permitted by Section 7.02(e), (n), (o), (r), (u) or (x);
(r) Indebtedness of the U.S. Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed at any time $15,000,00025,000,000;
(s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of such Indebtedness is less than or equal to 3.25:1.003.50:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,00050,000,000; provided that such Indebtedness shall not mature earlier than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof prior to the Maturity Date (except, in each case, for this proviso will not prevent (i) customary prepayment or repurchase events upon a change in control or an asset salesale and (ii) prior customary mandatory prepayment, repurchase or redemption provisions of “bridge” facilities in connection with a bridge or other interim credit facility to the Maturity Dateextent such bridge or interim credit facility, subject to customary conditions, automatically converts or exchanges into Indebtedness that would otherwise be permitted under this Section 7.03(s) (without giving effect to this clause (ii))); provided further that, for the avoidance of doubt, no Restricted Subsidiary that is not a Subsidiary Guarantor may guarantee or be an obligor with respect to such Indebtedness;
(t) Indebtedness under Treasury Management Agreements with Treasury Management Banks; and
and (u) the Northstar Loan.
Appears in 1 contract
Samples: Credit Agreement (Carters Inc)
Indebtedness and Disqualified Capital Stock. Create, incur, assume or suffer to exist any Indebtedness or Disqualified Capital Stock, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of (x) any Subsidiary Guarantor to the U.S. Borrower or to any other Subsidiary Guarantor, (y) the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower or any Subsidiary Guarantor owed to Foreign Subsidiaries; provided (i) all such Indebtedness described in clauses (x) and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(c) Indebtedness incurred by the U.S. Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the U.S. Borrower or any of its Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such disposition;
(d) Indebtedness of the U.S. Borrower and its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the U.S. Borrower and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(e) Indebtedness representing deferred compensation to employees of the U.S. Borrower and its Subsidiaries incurred in the ordinary course of business;
(f) Indebtedness consisting of obligations of the U.S. Borrower or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of obligations for borrowed money) incurred in the ordinary course of business;
(i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(j) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiaries;
(k) (i) guarantees by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), or (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03;
(l) Indebtedness existing on the Closing Date date hereof and listed on Schedule 7.03;
(m) purchase money Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount not to exceed $35,000,000 at any time outstanding;
(n) obligations (contingent or otherwise) of the U.S. Borrower or any Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into in the ordinary course of business for the purpose of fixing or hedging interest rate, currency or commodity risks and not for purposes of speculation;
(o) Indebtedness incurred by the U.S. Borrower to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year of the U.S. Borrower shall not exceed $5,000,000;
(p) Indebtedness of one or more Foreign Subsidiaries in an aggregate amount not to exceed at any time $15,000,000;
(q) Indebtedness of a Foreign Subsidiary to the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment permitted by Section 7.02(e), (n), (o), (r), (u) or (xu);
(r) Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $15,000,000;
(s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of such Indebtedness is less than or equal to 3.25:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,000; provided that such Indebtedness shall not mature earlier than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, for customary prepayment or repurchase events upon a change in control or an asset sale) prior to the Maturity Date; provided further that, for the avoidance of doubt, no Subsidiary that is not a Subsidiary Guarantor may guarantee or be an obligor with respect to such Indebtedness;; and
(t) Indebtedness under Treasury Management Agreements with Treasury Management Banks; and
(u) the Northstar Loan.
Appears in 1 contract
Samples: Credit Agreement (Carters Inc)
Indebtedness and Disqualified Capital Stock. Create, incur, assume or suffer to exist any Indebtedness or Disqualified Capital Stock, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of (x) any Subsidiary Guarantor to the U.S. Borrower or to any other Subsidiary Guarantor, (y) or of the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower or any Subsidiary Guarantor owed to Foreign SubsidiariesGuarantor; provided (i) all such Indebtedness described in clauses (x) and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(c) Indebtedness incurred by the U.S. Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the U.S. Borrower or any of its Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such disposition;
(d) Indebtedness of the U.S. Borrower and its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the U.S. Borrower and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(e) Indebtedness representing deferred compensation to employees of the U.S. Borrower and its Subsidiaries incurred in the ordinary course of business;
(f) Indebtedness consisting of obligations of the U.S. Borrower or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions;
(g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of or obligations for borrowed money) incurred in the ordinary course of business;
(i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(j) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiaries;
(k) (i) guarantees by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of the Borrower of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03;
(l) Indebtedness existing on the Closing Date date hereof and listed on Schedule 7.03;
(m) purchase money Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount shall not to exceed $35,000,000 at any time outstanding$30.0 million (including any Indebtedness acquired in connection with a Permitted Acquisition) or any refinancings thereof if the terms and conditions thereof when taken as a whole are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided such Indebtedness shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom; provided, further any such Indebtedness shall be secured only by the assets acquired in connection with the incurrence of such Indebtedness;
(n) obligations (contingent or otherwise) of the U.S. Borrower or any Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into in the ordinary course of business for the purpose of fixing or hedging interest rate, rate currency or commodity risks and not for purposes of speculation;
(o) Indebtedness incurred by the U.S. Borrower to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year the term of the U.S. Borrower this Agreement shall not exceed $5,000,0005.0 million;
(p) Indebtedness of one or more Foreign Subsidiaries (when taken together with any guarantees thereof by the Borrower or a Subsidiary Guarantor pursuant to Section 7.02(n)), in an aggregate amount not to exceed at any time $15,000,00010.0 million;
(q) Indebtedness of a Foreign Subsidiary to the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment permitted by Section 7.02(e), (n), (o), (r), (u) or (x);
(r) Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $15,000,000;
(s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of such Indebtedness is less than or equal to 3.25:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,000; provided that such Indebtedness shall not mature earlier than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, for customary prepayment or repurchase events upon a change in control or an asset sale) prior to the Maturity Date; provided further that, for the avoidance of doubt, no Subsidiary that is not a Subsidiary Guarantor may guarantee or be an obligor with respect to such Indebtedness;
(t) Indebtedness under Treasury Management Agreements with Treasury Management Banks; and
(u) the Northstar Loan.
Appears in 1 contract
Samples: Credit Agreement (Carter William Co)
Indebtedness and Disqualified Capital Stock. CreateThe Company will not, and will not permit any Subsidiary to, (x) create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness or (y) issue any Disqualified Capital Stock, exceptother than:
(a) Indebtedness under in respect of the Loan DocumentsNotes and other Obligations;
(b) Indebtedness of (x) the Company in respect of any Subsidiary Guarantor to the U.S. Borrower or to any other Subsidiary Guarantor, (y) the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower Management SHI Subordinated Note or any Subsidiary Guarantor owed to Foreign SubsidiariesAdditional Seller Subordinated Note; provided (i) all such Indebtedness described PROVIDED, HOWEVER, that the Company is the sole obligor in clauses (x) and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right respect of payment to the payment in full of the Obligations pursuant all principal of, interest on and other obligations relating to the terms of the applicable promissory notes such Management SHI Subordinated Note or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is madeAdditional Seller Subordinated Note;
(c) Indebtedness incurred by of Surviving Xxxxxx Xxxxx (x) under (and of Non-Insurance Subsidiaries as guarantors of) the U.S. Borrower Senior Loan Documents in an aggregate principal amount at any time outstanding not to exceed the EXCESS of $103,500,000 OVER the aggregate amount of all permanent payments and prepayments of principal, and (without duplication) all permanent reductions to commitments, made from time to time thereunder (EXCLUDING, HOWEVER, all such payments and prepayments made from the proceeds of, and all such commitments replaced by, any refinancing provided under a successor Senior Loan Agreement as provided in CLAUSE (a) of the definition of such term) and (y) consisting of Hedging Liabilities owing to a Senior Lender;
(d) for so long as Surviving Xxxxxx Xxxxx shall have any Indebtedness outstanding (or unused commitments in effect) under the Senior Loan Agreement, any other Indebtedness of Surviving Xxxxxx Xxxxx or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance which shall then be permitted by Section 9.1 of the U.S. Borrower Senior Loan Agreement to be outstanding (EXCLUDING, HOWEVER, any Indebtedness incurred to any Additional Seller, its designees or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the U.S. Borrower or any of its Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such disposition;
(d) Indebtedness of the U.S. Borrower and its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the U.S. Borrower and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromassigns);
(e) at any time after payment in full of all Indebtedness representing deferred compensation to employees of Surviving Xxxxxx Xxxxx under the U.S. Borrower Senior Loan Agreement (and the expiration or termination of all commitments thereunder), other Indebtedness of Surviving Xxxxxx Xxxxx and its Subsidiaries incurred in the ordinary course of business;
(f) Indebtedness consisting of obligations of the U.S. Borrower or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of obligations for borrowed money) incurred in the ordinary course of business;
(i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(j) guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiaries;
(k) (i) guarantees by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03;
(l) Indebtedness existing on the Closing Date and listed on Schedule 7.03;
(m) purchase money Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount not to exceed $35,000,000 37,500,000 at any one time outstanding;
(f) Indebtedness of the Company in respect of the TJC Consulting Agreement, the Tax Sharing Agreement, the Tax Indemnity Agreement, the Management SHI SAR Agreement or any Director's Indemnification Payment;
(g) Indebtedness of the Company to Surviving Xxxxxx Xxxxx in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(nh) obligations Indebtedness owing among Surviving Xxxxxx Xxxxx and its Subsidiaries;
(contingent or otherwisei) other unsecured Indebtedness of the U.S. Borrower or Company incurred for money borrowed in an aggregate principal amount at any time outstanding not to exceed $25,000,000; and
(j) Indebtedness of any Insurance Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into incurred in the ordinary course of its business for the purpose of fixing or hedging interest ratein accordance with Applicable Laws; PROVIDED, currency or commodity risks and not for purposes of speculation;HOWEVER, that,
(ok) no Indebtedness incurred by the U.S. Borrower otherwise permitted pursuant to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year of the U.S. Borrower foregoing clauses (EXCLUDING, HOWEVER, CLAUSE (a)) shall not exceed $5,000,000;
(p) Indebtedness of one or more Foreign Subsidiaries in an aggregate amount not to exceed at any time $15,000,000;
(q) Indebtedness of a Foreign Subsidiary to the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment be permitted by Section 7.02(e), (n), (o), (r), (u) or (x);
(r) Indebtedness of the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $15,000,000;
(s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of if such Indebtedness is less than or equal to 3.25:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans acquired by no less than $75,000,000; provided that a Jordan Party unless such Indebtedness shall not mature earlier is acquired by such Jordan Party in the ordinary course of its business for no more than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, for customary prepayment or repurchase events upon a change in control or an asset sale) prior to the Maturity Date; provided further that, for the avoidance of doubt, no Subsidiary that is not a Subsidiary Guarantor may guarantee or be an obligor with respect to such Indebtedness;
(t) Indebtedness under Treasury Management Agreements with Treasury Management Banksits fair value; and
(ul) no Additional Seller Subordinated Note otherwise permitted pursuant CLAUSE (b) and no other Indebtedness otherwise permitted pursuant to CLAUSE (g) or (i) shall be permitted unless it is, relative to all Obligations, subordinated and subject to postponement and standstill provisions during the Northstar Loanpendency of a Default Circumstance, and it has terms of payment and other covenants, defaults, rights and privileges, in each case consented to by the Required Noteholders.
Appears in 1 contract
Indebtedness and Disqualified Capital Stock. Create(a) The Loan Parties shall not, and shall not permit any of their respective Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness or Disqualified Capital StockIndebtedness, except:
(ai) Indebtedness under created pursuant to the Loan Documents;
(bii) Indebtedness of (x) any Subsidiary Guarantor to existing on the U.S. Borrower or to any other Subsidiary Guarantor, (y) the U.S. Borrower to any Subsidiary Guarantor or (z) the U.S. Borrower or any Subsidiary Guarantor owed to Foreign Subsidiaries; provided (i) all such Indebtedness described in clauses (x) Closing Date and (y) above shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and set forth on Schedule 7.1;
(iii) any payment Indebtedness incurred to finance the acquisition, construction or improvement by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount Group Member of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness owed by such Subsidiary to the U.S. Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(c) Indebtedness incurred by the U.S. Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-out or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing the performance of the U.S. Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the U.S. Borrower or any of its Subsidiaries; provided that in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (c) shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such disposition;
(d) Indebtedness of the U.S. Borrower and its Subsidiaries (A) assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof so long as such Indebtedness is incurred prior to or within one hundred eighty (180) days after such acquisition or the completion of such construction or improvements and Permitted AcquisitionRefinancings thereof; provided that the aggregate principal amount of such Indebtedness is in reliance on this subsection (iii) does not incurred exceed $500,000 in contemplation of such Permitted Acquisition, or the aggregate at any time outstanding;
(Biv) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as both immediately prior and after giving effect theretointercompany Indebtedness permitted under Sections 7.5(c), (x) no Default or Event of Default shall exist or result therefromd), and (ye) the U.S. Borrower and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 7.12 after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any extensions, renewals or replacements (“refinancings”) of such Indebtedness except refinancings of any such Indebtedness if the terms and conditions thereof when taken as a whole are less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is not greater than or equal to that of the Indebtedness being refinanced or extended; provided such refinancing Indebtedness shall not (A) include Indebtedness of an obli gor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in principal amount the Indebtedness being renewed, extended or refinanced along with interest and premium (if any) of such Indebtedness, together with fees and expenses related to such renewal, extension or refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom7.16;
(ev) Guarantees incurred by any Group Member in respect of any Indebtedness (other than Permitted Subordinated Debt) of any Secured Loan Party that is otherwise permitted by this Section 7.1(a);
(vi) Indebtedness representing deferred compensation to employees in respect of Hedging Obligations permitted by Section 7.11;
(vii) Indebtedness arising from the U.S. Borrower and its Subsidiaries incurred endorsement of instruments in the ordinary course of business;
(fviii) Indebtedness consisting of and cash management obligations of the U.S. Borrower or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions;
(g) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(h) Indebtedness which may be deemed to exist pursuant to any guarantees, performance, surety, statutory, appeal or similar obligations (other than any guarantees of obligations for borrowed money) incurred in the ordinary course of business;
(i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with cash management deposit accounts; provided that such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(j) guarantees , in each case, incurred in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the U.S. Borrower and its Subsidiariesbusiness;
(kix) (i) guarantees Permitted Subordinated Debt incurred by the U.S. Borrower of Indebtedness of a Subsidiary Guarantor or guarantees by a Subsidiary Guarantor of Indebtedness of the U.S. Borrower or another Subsidiary Guarantor or (ii) guarantees by a Subsidiary of the U.S. Borrower that is not a Guarantor of Indebtedness of another Subsidiary of the U.S. Borrower that is not a Subsidiary Guarantor or (iii) guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary or (iv) guarantees by the U.S. Borrower or a Subsidiary Guarantor of Indebtedness of a Subsidiary of the U.S. Borrower that is not a Guarantor to extent permitted by Section 7.02(e), (n), (o), (r), (u), or (x) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.03;
(l) Indebtedness existing Parent on the Closing Date for the purposes of funding, directly or indirectly, the Acorn Acquisition and listed on Schedule 7.03the Image Acquisition, but only for so long as no Loan Party (other than Parent) or Restricted Subsidiary is liable therefor (whether as a co-borrower, guarantor, or otherwise);
(mx) purchase money unsecured Indebtedness incurred within 360 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness not otherwise permitted under this Section 7.1(a) in an aggregate amount which, when added to refinancings thereof and with sales and lease-backs permitted pursuant to Section 7.09, is in an aggregate principal amount not to exceed $35,000,000 500,000 at any one time outstanding;
(nxi) obligations (contingent or otherwise) of the U.S. Borrower or any Subsidiary existing or arising under any Swap Contract; provided that such obligations are (or were) entered into in the ordinary course of business for the purpose of fixing or hedging interest rate, currency or commodity risks and not for purposes of speculation;
(o) Indebtedness incurred by the U.S. Borrower to past, present or future members of management, employees, directors and consultants of Holdings, the U.S. Borrower or any Subsidiary in connection with stock repurchases; provided that the aggregate amount of such Indebtedness incurred during any fiscal year of the U.S. Borrower shall not exceed $5,000,000;
(p) Indebtedness of one or more Foreign Subsidiaries Foyle’s War 8 Existing Debt in an aggregate amount not to exceed at any time the sum of $15,000,000;10,000,000 minus all repayments of principal thereon after the Closing Date; and
(qxii) Indebtedness which represents a Permitted Refinancing of a Foreign Subsidiary to any of the U.S. Borrower or a Subsidiary Guarantor to the extent constituting an Investment permitted by Section 7.02(eIndebtedness described in clauses (ii), (niii), (o), (r), (u) or and (x) of this Section 7.1(a);
(r) . If any item of Indebtedness would qualify to be included in more than one category of the U.S. Borrower and its Subsidiaries in an aggregate amount not Indebtedness permitted pursuant to exceed at any time $15,000,000;
(s) unsecured Indebtedness of the U.S. Borrower and the Subsidiary Guarantors, so long as, after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing, (B) the Lease Adjusted Leverage Ratio (on a Pro forma Basis after giving effect to the incurrence of such Indebtedness) at the time of the incurrence of such Indebtedness is less than or equal to 3.25:1.00; and (C) the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loansthis Section 7.1, the Outstanding Amount Borrowers may from time to time select and change the category in which to classify such item of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,000; provided that such Indebtedness shall not mature earlier than the Maturity Date and no portion thereof shall be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, for customary prepayment or repurchase events upon a change in control or an asset sale) prior to the Maturity Date; provided further thatand, for the avoidance of doubt, no Subsidiary that is not a Subsidiary Guarantor any item of Indebtedness (or any portion thereof) may guarantee be concurrently included in one or be an obligor with respect more categories of Indebtedness permitted pursuant to such Indebtedness;this Section 7.1).
(tb) Indebtedness under Treasury Management Agreements with Treasury Management Banks; and
(u) the Northstar LoanThe Loan Parties shall not, and shall not permit any of their respective Restricted Subsidiaries to, issue or permit to exist any Disqualified Capital Stock of any such Person.
Appears in 1 contract
