Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”); (a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof; (b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries; (c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets; (d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”; (e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business; (f) Permitted Ratio Debt and any Permitted Refinancing thereof; (g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due; (h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof; (i) the Obligations; (j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement; (k) [reserved]; (l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default; (m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d); (n) Guarantees of Indebtedness described in Section 10.3; (o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries; (p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims; (q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6; (r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence; (t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date); (u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding; (v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00; (w) Credit Agreement Refinancing Indebtedness; (x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof; (y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations; (z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof); (aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes; (bb) [reserved]; (cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding; (dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof; (ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof; (ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and (gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 5 contracts
Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $125,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $60,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location, the Loan Parties shall cause the holders of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) the Obligations[intentionally omitted];
(j) so long as no Event of Default shall have occurred and be continuing as of the date of incurrence thereof, including as a result of a breach of Section 7.15 (calculating the Consolidated Fixed Charge Coverage Ratio, if applicable, on a pro forma basis) and, unless all of the FILO Lenders otherwise agree at any time that the Aggregate FILO Facility Commitments exceed $0, so long as the incurrence of such Indebtedness arising from indemnification obligations would result in favor a permanent reduction of SVU pursuant to the NAI Purchase AgreementAggregate FILO Facility Commitments in accordance with Section 2.18(e), the Permitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 4 contracts
Samples: Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $500,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $100,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location or any other warehouse or other leased storage or distribution facility in which $10,000,000 or more of $1,250,000,000 and 5.00% Inventory is or may be located from time to time, the Loan Parties shall cause the holders of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) the Obligations[intentionally omitted];
(j) Indebtedness arising from indemnification obligations in favor so long as no Event of SVU pursuant to Default shall have occurred and be continuing as of the NAI Purchase Agreementdate of incurrence thereof, including as a result of a breach of Section 7.15 (calculating the Consolidated Fixed Charge Coverage Ratio, if applicable, on a pro forma basis), the Permitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 3 contracts
Samples: Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 750,000,000 and 5.003.25% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt Permitted Notes in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt Permitted Notes that is are unsecured or that is are secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt Permitted Notes shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt Permitted Notes remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 500,000,000 or (y) 3.002.25% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets 500,000,000 at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 2 contracts
Samples: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding (i) the Secured Obligations and (ii) the Secured Obligations (as defined in the First Lien Credit Agreement) permitted to be incurred under the First Lien Credit Agreement as in effect on the Escrow Release Closing Date (excluding any increase in the commitments thereunder pursuant to Section 2.15 of the First Lien Credit Agreement) and listed on Schedule 10.3 and subject to the Intercreditor Agreement; provided that, in no event shall the Aggregate FILO Facility Commitments (as defined in the First Lien Credit Agreement) exceed $40,000,000 at any Permitted Refinancing thereoftime;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $125,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $60,000,000 at any time outstanding and provided, further, that, if requested by the greater First Lien Agent with respect to any Material Storage Location, the Loan Parties shall cause the holders of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings thereofRefinancing thereof as long as, in the case of any sale-leaseback transaction permitted hereunder with respect to any Material Storage Location, the Collateral Agent shall have received from such purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Collateral Agent;
(i) the Obligations[intentionally omitted];
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement[intentionally omitted];
(k) [reservedintentionally omitted];
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Barnes & Noble Education, Inc.), Term Loan Credit Agreement (Barnes & Noble Education, Inc.)
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;Preferred Stock of a Guarantor; or
(c) Without duplication Indebtedness or Disqualified Stock of Indebtedness described in the Borrower or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; provided further that (x) clause (g2) of this Section, purchase money Indebtedness definition will not apply to any Refinancing of any Loan Party Indebtedness other than Indebtedness incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement under clause (30) of Section 7.02(b) (including any fixed or capital assets, including Attributable Indebtedness successive Refinancings thereof incurred under Capital Lease Obligations and Synthetic Lease Obligations, clause (13) of Section 7.02(b)) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Subordinated Indebtedness (other than Earn-Out Obligations) does Subordinated Indebtedness assumed or acquired in an Investment or acquisition and not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely created in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) thereof), Disqualified Stock and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 Preferred Stock and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined Refinancing Indebtedness may be incurred in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated form of a bridge or other interim credit facility intended to be Refinanced with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence long-term indebtedness (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (such bridge or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt interim credit facility shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time satisfy clause (2) of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio this definition so long as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt such credit facility includes customary “rollover” provisions and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if assuming such Indebtedness is secured by a Liencredit facility were to be extended pursuant to such “rollover” provisions, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection extended credit facility would comply with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i2) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3this definition).
Appears in 2 contracts
Samples: Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 750,000,0001,250,000,000 and 5.003.255.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Permitted NotesIncremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Permitted NotesIncremental Equivalent Debt that is areis unsecured or that is areis secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Permitted NotesIncremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Permitted NotesIncremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 500,000,000750,000,000 or (y) 3.002.253.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the $500,000,000the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 2 contracts
Samples: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor; or (bC) createIndebtedness or Disqualified Stock of the Borrower or Indebtedness, incurDisqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances Indebtedness, assumeDisqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and (4) in the case of Refinancing Indebtedness incurred in respect of Indebtedness incurred under Section 6.3(b)(i) or that is secured by Liens on the Collateral that are equal in priority (without regard to control of remedies) with the Obligations, guarantee, suffer to exist such Refinancing Indebtedness ranks equal or otherwise become junior in right of payment with the Obligations and is secured by Liens on the Collateral on an equal or remain liable junior priority basis with respect to, to the Obligations or is unsecured; provided that any such Refinancing Indebtedness that is (A) secured by Liens on the Collateral ranking on an equal priority basis (but without regard to control of remedies) with the Obligations shall be subject to an Equal Priority Intercreditor Agreement or (B) secured by Liens on the Collateral ranking junior in priority to the Liens on the Collateral securing the Obligations shall be subject to a Junior Priority Intercreditor Agreement; (xviii) Indebtedness, except (eachDisqualified Stock or Preferred Stock of the Borrower and/or any Guarantors; provided that, “Permitted Indebtedness”);
(a) Indebtedness outstanding on at the Escrow Release Date time of incurrence or issuance thereof and listed on Schedule 10.3 after giving pro forma effect thereto and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication use of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition proceeds thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by such Indebtedness, Disqualified Stock or Preferred Stock then outstanding pursuant to this clause (cxviii) shall not exceed (when aggregated with the greater aggregate principal amount of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Refinancing Indebtedness is incurred prior pursuant to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guaranteesSection 6.3(b)(xvii) in respect of performancesuch Indebtedness then outstanding) shall not, bidexcept as contemplated by Section 6.3(b)(xvii), appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in exceed an amount equal to 100.0% of the ordinary course net proceeds received by the Borrower since immediately after the Issue Date from the issue or sale of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect Equity Interests of the Borrower or cash contributed to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness capital of the Borrower (other than Earn-Out Obligations) does not require the payment in cash proceeds of principal (other than in respect Disqualified Stock or sales of working capital adjustments) prior Equity Interests to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
) to the extent such net proceeds have not otherwise been applied to make Restricted Payments pursuant to clause (p2) of Section 6.1(a) or to make Permitted Investments (other than Permitted Investments specified in any of clauses (a), (b) and (e) of the definition thereof); (xix) Indebtedness with respect of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction that was, at the time entered into, not for speculative purposes; (xx) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (1) deferred compensation to all obligations current or former directors, officers, employees, members of management, managers, members, partners, independent contractors and liabilities, contingent or otherwise, in respect consultants of letters of credit, acceptances and similar facilities incurred the Borrower and/or any Restricted Subsidiary in the ordinary course of business, including, without limitation, letters consistent with past practice or consistent with industry norm of credit in respect of workers’ the Borrower and/or its Subsidiaries and (2) deferred compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse similar arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower Investment or any Restricted Subsidiary incurred in the ordinary course of business acquisition permitted under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstandingthis Agreement;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 1 contract
Samples: Uncommitted Letter of Credit and Reimbursement Agreement (New Fortress Energy Inc.)
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor; or (bC) create, incur, assume, guarantee, suffer to exist Indebtedness or otherwise become Disqualified Stock of the Borrower or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication Disqualified Stock or Preferred Stock of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtednessan Unrestricted Subsidiary; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B4) in the case of any Incremental Equivalent Debt that is unsecured or Refinancing Indebtedness incurred in respect of Indebtedness that is secured by Liens on a second the Collateral that are equal in priority (without regard to control of remedies) with the Obligations, such Refinancing Indebtedness ranks equal or other junior priorityin right of payment with the Obligations and is secured by Liens on the Collateral on an equal or junior priority basis with respect to the Obligations or is unsecured; provided that any such Refinancing Indebtedness that is (A) secured by Xxxxx on the Collateral ranking on an equal priority basis (but without regard to control of remedies) with the Obligations shall be subject to an Equal Priority Intercreditor Agreement or (B) secured by Liens on the Collateral ranking junior in priority to the Liens securing on the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens Collateral securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under shall be subject to a Qualified Real Estate Financing FacilityJunior Priority Intercreditor Agreement; provided thatfurther, immediately before and after giving effect thereto, that any Refinancing Indebtedness that is secured shall have the Loan-to-Value Ratio as same or junior Lien priority of such date (calculated on a pro forma basis after giving effect to Indebtedness that was refinanced by such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 1 contract
Indebtedness; Disqualified Stock. or Preferred Stock of the Borrower or anyRestricted Subsidiary that serves to extend, replace, refund, refinance, renew or defease anyIndebtedness, Disqualified Stock or Preferred Stock of such Person incurred as permitted underclause (a) Issue of this Section 6.01 and subclauses (b)(iii), (iv), (v) and (vi) above, thissubclause (b)(xv) and subclauses (b)(xvi), (b)(xvii) and (b)(xx)(B) below, and additionalIndebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums and fees(including reasonable lender premiums) in connection therewith (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (eachcollectively, “Permitted IndebtednessRefinancingIndebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, ; provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (iithat:(A) such Refinancing Indebtedness has a (1) Weighted Average Life to Maturity atthe time such Refinancing Indebtedness is incurred prior which is not less than the remainingWeighted Average Life to Maturity of the Indebtedness, Disqualified Stock or within two hundred and seventy (270) days after such acquisitionPreferred Stockbeing extended, leasereplaced, construction refunded, refinanced, renewed or improvement (other than Permitted Refinancing thereof), defeased and (iii2) maturity date that isno shorter than the maturity date of the Indebtedness, Disqualified Stock or Preferred Stockbeing extended, replaced, refunded, refinanced, renewed or defeased,(B) to the extent such Refinancing Indebtedness does not exceed the cost of acquisitionextends, leasereplaces, construction refunds,refinances, renews or improvement of such fixed or capital assets;
defeases (d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g1) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable or the LoanGuaranty of any Subsidiary Guarantor, such Refinancing Indebtedness is subordinated to theObligations or such Loan Guaranty at least to the Agents; providedsame extent as the Indebtedness beingextended, furtherreplaced, refunded, refinanced, renewed or defeased or (2) Disqualified Stock orPreferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock,respectively,(C) shall not include (1) Indebtedness, Disqualified Stock or Preferred Stock of aRestricted Subsidiary that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
not a Subsidiary Guarantor that refinances Indebtedness,Disqualified Stock or Preferred Stock of the Borrower, (h2) Indebtedness Indebtedness, Disqualified Stock orPreferred Stock of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakingsa Subsidiary Guarantor that refinancesIndebtedness, Disqualified Stock or Preferred Stock of a Subsidiary Guarantor or(3) to a Indebtedness, Disqualified Stock or Preferred Stock of the Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided RestrictedSubsidiary that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting refinances Indebtedness, obligations in respect Disqualified Stock or Preferred Stock of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of creditanUnrestricted Subsidiary, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.-92-
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
Indebtedness; Disqualified Stock. or Preferred Stock of a Restricted Subsidiary or a Borrower owing to another Borrower or another Restricted Subsidiary; provided that (ax) Issue if a Borrower or a Loan Party Incurs such Indebtedness, Disqualified Stock or (b) createPreferred Stock owing to a Non-Loan Party, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any such Indebtedness, except Disqualified Stock or Preferred Stock is subordinated in right of payment to such Borrower’s Obligations or Guarantee of such Loan Party, as applicable, pursuant to the Intercompany Subordination Agreement and (each, “Permitted Indebtedness”);
(ay) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness subsequent issuance or transfer of any Loan Party incurred after the Escrow Release Date Capital Stock or any other event that results in any Restricted Subsidiary lending such Indebtedness, Disqualified Stock or Preferred Stock ceasing to finance the acquisition, lease, construction be a Restricted Subsidiary or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition other subsequent transfer of any such assets Indebtedness, Disqualified Stock or secured by Preferred Stock (except to a Lien on any Borrower or another Restricted Subsidiary) shall be deemed, in each case, to be an Incurrence of such assets prior to the acquisition thereofIndebtedness, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness Disqualified Stock or Preferred Stock not permitted by this clause (ci); (j) shall not exceed the greater of $1,250,000,000 Swap Contracts and 5.00% of Total Assets at the time of incurrencecash management services Incurred, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and for speculative purposes; (iiik) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and or bank guaranteesguarantees or similar instruments) in respect of customs, self-insurance, performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and obligations provided by any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for Borrower or any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the AgentsRestricted Subsidiary; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event Disqualified Stock of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a any Borrower or any of its Subsidiaries;
their Restricted Subsidiaries and Preferred Stock of any of their Restricted Subsidiaries in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (p) Indebtedness with respect to all obligations and liabilitiesl), contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall does not exceed the greater of (x) $3,750,000,000 40,000,000 and (y) the Borrowing Base (measured 40% of Consolidated EBITDA, at the any one time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amountoutstanding, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8plus, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge refinancing of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees Disqualified Stock or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.Preferred Stock
Appears in 1 contract
Samples: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) ), which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved]reserved];Indebtedness existing on the Amendment No. 7 Proposed Amendments Effective Date (other than Indebtedness permitted under clauses (i), (t) and (u)) and Permitted Refinancings thereof;
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (sst) of Section 10.3.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, The Issuer and its Restricted Subsidiaries will not incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, to any Indebtednessindebtedness or issue any disqualified stock, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable for: • Indebtedness under Capital Lease the Senior Obligations in a principal amount not to exceed $275.0 million and Synthetic Lease Obligationspermitted refinancing thereof (including, in such principal amount, the principal amount (or accreted value of the Senior Obligations so refinanced), plus any an amount unpaid accrued interest and premiums thereon, plus other customary and market underwriting discounts, defeasance costs, fees (including any Indebtedness assumed original issue discount), commissions and expenses incurred in connection with such refinancing). • Additional indebtedness so long as pro forma fixed charge coverage ratio is at least 2.00 to 1.00. • Indebtedness evidenced by the acquisition securitization documents that is existing at the issue date of any such assets or secured by a Lien on any such assets prior the Notes. • Subordinated indebtedness (subject to certain conditions to be agreed). • Indebtedness incurred to Refinance the Existing 2018 Notes, other than the Initial Notes (as defined in the Indenture) and Indebtedness incurred pursuant to the acquisition thereofSenior Credit Agreement, and Permitted Refinancings thereof, provided, however, that (i) up to the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed 2018 Convertible Notes outstanding on the Issue Date. • Purchase money indebtedness of $10.0 million. • General indebtedness basket of the greater of $1,250,000,000 10.0 million and 5.0010% of Total Assets at the time Issuer’s consolidated EBITDA for the four most recently completed fiscal quarters. • Other indebtedness permitted under the Existing Credit Facility in effect as of incurrencethe date hereof or customarily permitted under similar instruments of this type. Asset Sales The Issuer and its Restricted Subsidiaries will not make certain Asset Sales (as defined in the Indenture), (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement except for: • Dispositions of assets (other than Permitted Refinancing thereofBrand Related IP (as defined in the Existing Credit Facility), and (iiiincluding, for the avoidance of doubt, any conveyances of equity interests in order to effectuate sales of Brand Related IP) such Indebtedness does not exceed for the cost term of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person the Notes in the ordinary course of business for the purpose up to $10.0 million. • Disposition of directly mitigating risks associated with fluctuations in interest rates surplus, damaged, worn-out or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred obsolete assets in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed including the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees abandonment or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course disposition of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3intellectual property that is, in the event that an item of Indebtedness meets the criteria of more than one reasonable judgment of the categories of Indebtedness described Issuer, no longer economically practicable to maintain or useful in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more conduct of the above clauses; provided that (i) all Indebtedness outstanding under business of the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3Issuer and its Restricted Subsidiaries, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3taken as a whole).
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date date hereof and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiariesof any Loan Party to any other Loan Party;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase Purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 300,000,000 at any time outstanding and 5.00% of Total Assets at the time of incurrencefurther, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and Contingent liabilities under surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes duefixed and due and payable;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof);
(i) the The Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU ABS pursuant to the NAI Purchase AgreementAPA;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(ml) obligations Obligations in respect of letters of credit existing as of the Escrow Release Closing Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(nm) Guarantees of Indebtedness described in Section 10.3;
(on) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a the Borrower or any of its Subsidiaries;
(po) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(qp) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a the Borrower permitted by Section 10.6;
(rq) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten five Business Days of its incurrence;
(ts) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not to exceed the greater of (x) $3,750,000,000 1,200,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Closing Date);
(ut) Incremental Equivalent Debt Permitted Notes in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt Permitted Notes that is are unsecured or that is are secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt Permitted Notes shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt Permitted Notes remain outstanding;
(vu) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(wv) Credit Agreement Refinancing Indebtedness;
(w) Obligations under the Outside LC Facility;
(x) Senior Safeway Acquisition Debt The ASC Notes and the NAI Notes and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway ASC/NAI Notes and Existing Safeway Debentures and Permitted Refinancings thereofRefinancing Indebtedness; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;and
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets 100,000,000 at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereofoutstanding. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (ggy) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 1 contract
Indebtedness; Disqualified Stock. or Preferred Stock of the Borrower or anyRestricted Subsidiary that serves to extend, replace, refund, refinance, renew or defease anyIndebtedness, Disqualified Stock or Preferred Stock of such Person incurred as permitted underclause (a) Issue of this Section 6.01 and subclauses (b)(iii), (iv), (v) and (vi) above, thissubclause (b)(xv) and subclauses (b)(xvi), (b)(xvii) and (b)(xx)(B) below, and additionalIndebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums and fees(including reasonable lender premiums) in connection therewith (bcollectively, “RefinancingIndebtedness”); provided, however, that:(A) create, incur, assume, guarantee, suffer such Refinancing Indebtedness has a (1) Weighted Average Life to exist or otherwise become or remain liable with respect to, any Maturity atthe time such Refinancing Indebtedness is incurred which is not less than the remainingWeighted Average Life to Maturity of the Indebtedness, except Disqualified Stock or Preferred Stockbeing extended, replaced, refunded, refinanced, renewed or defeased and (each2) maturity date that isno shorter than the maturity date of the Indebtedness, “Permitted Indebtedness”);
Disqualified Stock or Preferred Stockbeing extended, replaced, refunded, refinanced, renewed or defeased,(B) to the extent such Refinancing Indebtedness extends, replaces, refunds,refinances, renews or defeases (a1) Indebtedness outstanding on subordinated to the Escrow Release Date and listed on Schedule 10.3 and Obligations or the LoanGuaranty of any Permitted Subsidiary Guarantor, such Refinancing thereof;
Indebtedness is subordinated to theObligations or such Loan Guaranty at least to the same extent as the Indebtedness beingextended, replaced, refunded, refinanced, renewed or defeased or (b2) Disqualified Stock orPreferred Stock, such Refinancing Indebtedness among is Disqualified Stock or Preferred Stock,respectively,(C) shall not include (1) Indebtedness, Disqualified Stock or Preferred Stock of aRestricted Subsidiary that is not a Subsidiary Guarantor that refinances Indebtedness,Disqualified Stock or Preferred Stock of the Parent Borrower, Safeway and their (2) Indebtedness, Disqualified Stock orPreferred Stock of a Restricted Subsidiaries;
Subsidiary that is not a Subsidiary Guarantor that refinancesIndebtedness, Disqualified Stock or Preferred Stock of a Subsidiary Guarantor or(3) Indebtedness, Disqualified Stock or Preferred Stock of the Borrower or a Restricted-93- Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of anUnrestricted Subsidiary,(D) such Refinancing Indebtedness shall be in an aggregate principal amount (coraccreted value, if applicable) Without duplication of Indebtedness described in clause that does not exceed the principal amount (gor accreted value, ifapplicable) of this Sectionthe Indebtedness, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date Disqualified Stock or Preferred Stock so modified, refinanced,refunded, renewed or extended except by an amount equal to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligationsunpaid accrued interest andpremium thereon plus other reasonable amounts paid, and any Indebtedness assumed fees and expenses reasonablyincurred, in connection with the acquisition of any such assets extension, replacement, refunding, refinancing, renewal ordefeasance,(E) if such Indebtedness, Disqualified Stock or Preferred Stock being so extended,replaced, refunded, refinanced, renewed or defeased is secured by a Lien on the Collateral, theLien securing such Refinancing Indebtedness shall not be senior in priority to the Lien on theCollateral securing the Indebtedness, Disqualified Stock or Preferred Stock being so extended,replaced, refunded, refinanced, renewed or defeased unless otherwise permitted under thisAgreement and any such assets prior Liens shall be subject to the acquisition thereofa First Lien Intercreditor Agreement or JuniorLien Intercreditor Agreement, and Permitted Refinancings thereof, provided, however, that (ias applicable,(F) the aggregate principal amount of Indebtedness permitted by this clause terms and conditions (c) shall not exceed the greater of $1,250,000,000 including, if applicable, as to collateral but excludingas to subordination, interest rate and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwiseredemption premium) of any Loan Party such RefinancingIndebtedness, taken as a whole, are not materially less favorable to the lenders of suchRefinancing Indebtedness than the terms and conditions of the Indebtedness, Disqualified Stockor Preferred Stock being extended, replaced, refunded, refinanced, renewed or defeased, and(G) to the extent such Indebtedness, Disqualified Stock or Preferred Stock beingextended, replaced, refunded, refinanced, renewed or defeased is unsecured, such RefinancingIndebtedness is unsecured;provided, further, that any incurrence of Indebtedness or issuance of Disqualified Stock orPreferred Stock by any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to thissubclause (b)(xv) shall be subject to the limitations set forth in Section 6.01(g) to the sameextent as the Indebtedness refinanced;(xvi) Indebtedness, Disqualified Stock or Preferred Stock (x) of the Borrower or anyRestricted Subsidiary incurred to finance any Investment permitted by subclause (c)(i)(A) or (B)or (c)(iii) of the definition of “Permitted Investments” or (y) of Persons that are acquired by theBorrower or any Restricted Subsidiary thereof existing or arising under any Swap Contract, Persons that are merged into the Borrower or aRestricted Subsidiary in accordance with the terms of this Agreement or that is assumed by theBorrower or a Restricted Subsidiary in connection with such Investment; provided that (A) inthe case of subclauses (b)(xvi)(x) and (b)(xvi)(y) above, on a pro forma basis for the issuance orassumption of such obligations are Indebtedness, Disqualified Stock or Preferred Stock and the application ofproceeds therefrom, either (1) the Borrower would be permitted to incur at least $1.00 ofadditional Indebtedness pursuant to Section 6.01(a) or were(2) entered into by the Interest Coverage Ratio of theBorrower for the Borrower’s most recently ended Test Period would be greater than immediatelyprior to such Person acquisition or merger, (B) such Indebtedness, Disqualified Stock or Preferred Stockis not incurred while an Event of Default exists and no Event of Default shall result therefrom,(C) in the ordinary course case of business for subclause (b)(xvi)(x) above only, such Indebtedness, Disqualified Stock orPreferred Stock complies with the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, Required Additional Debt Terms and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guaranteesD) in respect of performancethe case ofsubclause (b)(xvi)(y) above only, bidsuch Indebtedness, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, Disqualified Stock or Preferred Stock isnot incurred in the ordinary course contemplation of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition such acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agentsmerger; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees any-94- incurrence of Indebtedness described in Section 10.3;
(o) Indebtedness incurred or issuance of Disqualified Stock or Preferred Stock by a Receivables anyRestricted Subsidiary in a Qualified Receivables Financing that is not recourse a Subsidiary Guarantor pursuant to this subclause (except for Standard Securitization Undertakingsb)(xvi) shallbe subject to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, the limitations set forth in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B6.01(g);(xvii) Indebtedness arising from the honoring of by a bank or other financial institution of institutionof a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, ofbusiness; provided that such Indebtedness is extinguished within ten (10) Business Days of its incurrence;
itsincurrence;(xviii) [Reserved];(xix) Indebtedness incurred by a Foreign Subsidiary which, when aggregated with theprincipal amount of all other Indebtedness incurred pursuant to this subclause (tb)(xix) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall thenoutstanding, does not exceed the greater of (x) $3,750,000,000 150.0 million and (y) 35.0% of EBITDA of theBorrower for the Borrowing Base (measured at most recently ended Test Period as of the time such Indebtedness is incurred;(xx) Indebtedness, Disqualified Stock and Preferred Stock of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt Borrower or anyRestricted Subsidiary not otherwise permitted under this Section 6.01 in an aggregate principal amountprincipalamount or liquidation preference which, when aggregated with the principal amount andliquidation preference of Incremental Term Loans all other Indebtedness, Disqualified Stock and Preferred Stock incurredpursuant to this subclause (b)(xx) and then outstanding (together with any RefinancingIndebtedness in respect of any such Indebtedness, Disqualified Stock or Preferred Stock which isthen outstanding in reliance on subclause (b)(xv) above), does not at any one time outstandingexceed the sum of (A) the greater of (1) $300.0 million and (2) 75% of EBITDA of the Borrowerfor the most recently ended Test Period as of the time such Indebtedness, Disqualified Stock orPreferred Stock is incurred (it being understood that any Indebtedness, Disqualified Stock andPreferred Stock incurred pursuant to this subclause (b)(xx) shall for purposes of this subclause(b)(xx) cease to be deemed incurred or outstanding under this subclause (b)(xx) but shall bedeemed incurred pursuant to Section 2.86.01(a) from and after the first date on which the Borroweror such Restricted Subsidiary, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject as applicable, could have incurred such Indebtedness,Disqualified Stock or Preferred Stock pursuant to Section 14.13(e6.01(a) without reliance on thissubclause (b)(xx)(A)), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and plus (B) 100% of the net cash proceeds received by the Borrower sincethe Closing Date from the issue or sale of Equity Interests of the Borrower or cash contributed tothe capital of the Borrower (in the case each case, other than proceeds of any Incremental Equivalent Debt that is unsecured Disqualified Stock, DesignatedPreferred Stock or that is secured on a second priority (or other junior priority) basis sales of Equity Interests to the Liens securing Borrower or any of its Subsidiaries) asdetermined in accordance with subclause (a)(iii) of the Obligations, for purposes definition of determining the Consolidated First Lien Net Leverage Ratio, “Applicable Amount” to theextent such Incremental Equivalent Debt shall be deemed net cash proceeds or cash has not been applied to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times make Restricted Payments or tomake Permitted Investments (such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect theretoamount, the Loan“Designated Equity Amount”);(xxi) Attributable Debt incurred by the Borrower or any Restricted Subsidiarypursuant to Sale and Lease-to-Value Ratio as Back Transactions of such date property (calculated on a pro forma basis after giving effect to such transactionreal or personal), including equipment or otherfixed or capital assets owned by the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured as of the ClosingDate or acquired by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in after the ordinary course Closing Date inexchange for, or with the proceeds of business under guarantees the sale of, such assets owned by the Borrower or anyRestricted Subsidiary as of Indebtedness of suppliers, licensees, franchisees or customers in an the Closing Date; provided that the aggregate amount of AttributableDebt incurred under this subclause (b)(xxi) does not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y100.0 million and(y) 3.0025.0% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one EBITDA of the categories of Indebtedness described in clauses (a) through (gg) above, Borrower for the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more most recently ended Test Period as of the above clausestimesuch Attributable Debt is incurred;(xxii) [Reserved]; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.-95-
Appears in 1 contract
Samples: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $125,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $60,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location, the Loan Parties shall cause the holders of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings thereofRefinancing thereof as long as, in the case of any sale-leaseback transaction permitted hereunder with respect to any Material Storage Location, the Collateral Agent shall have received from such purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Collateral Agent;
(i) the Obligations[intentionally omitted];
(j) after the expiration of the Bridge Loan Period, so long as no Event of Default shall have occurred and be continuing as of the date of incurrence thereof, including as a result of a breach of Section 7.15 (calculating the Consolidated Fixed Charge Coverage Ratio, if applicable, on a pro forma basis) and, unless all of the FILO Lenders otherwise agree at any time that the Aggregate FILO Facility Commitments exceed $0, so long as the incurrence of such Indebtedness arising from indemnification obligations would result in favor a permanent reduction of SVU pursuant to the NAI Purchase AgreementAggregate FILO Facility Commitments in accordance with Section 2.18(e), the Permitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved](i) during the Bridge Loan Period so long as the Intercreditor Agreement is in full force and effect with respect thereto, Subordinated Term Loan Obligations (or, if applicable, any replacement obligations in respect thereof pursuant to a Qualifying Refinancing Transaction) in an aggregate principal amount not to exceed $30,000,000 (plus paid-in-kind interest thereon) at any time outstanding, and (ii) after the expiration of the Bridge Loan Period, other Indebtedness in an aggregate principal amount not to exceed $75,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided that the aggregate notional amount of all such Swap Contracts shall not exceed $250,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $100,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location or any other warehouse or other leased storage or distribution facility in which $10,000,000 or more of $1,250,000,000 and 5.00% Inventory is or may be located from time to time, the Loan Parties shall cause the holders of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent Contingent liabilities under surety bonds or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person similar instruments incurred in the ordinary course of business for in connection with the purpose construction or improvement of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereofStores;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) Indebtedness under the ObligationsSeller Note and any Permitted Refinancing thereof; provided, however, that if the Seller Note has not, at least forty-five (45) days prior to the maturity thereof, been refinanced, refunded, renewed or extended to extend such maturity to a date that is at least ninety-five (95) days later than the Maturity Date, the Administrative Agent may, or at the request of the Required Lenders, shall, establish a reserve in an amount equal to all remaining amounts due under the Seller Note (the “Seller Note Reserve”);
(j) Indebtedness arising from indemnification obligations in favor So long as no Event of SVU pursuant to Default shall have occurred and be continuing as of the NAI Purchase Agreementdate of incurrence thereof, including as a result of a breach of Section 7.15 (calculating Availability using Pro Forma Excess Availability and Projected Excess Availability), the Permitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor; or (bC) create, incur, assume, guarantee, suffer to exist Indebtedness or otherwise become Disqualified Stock of the Borrower or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication Disqualified Stock or Preferred Stock of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Loan Party in a Permitted Acquisitionan Unrestricted Subsidiary; (4) provided that, Permitted Investment (or other acquisition Refinancing Indebtedness may include Indebtedness of Restricted Subsidiaries that are not prohibited hereunder) , which Guarantors so long as any such Refinancing Indebtedness is existing at secured by Liens on the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) FLNG1 Collateral (as defined in the ABL TLB Credit Agreement), and such Refinancing Indebtedness is used (i) first, to prepay all outstanding Indebtedness under the TLB Credit Agreement as in effect on the Escrow Release Date);
and (uii) Incremental Equivalent Debt in an aggregate second, to prepay or offer to repurchase outstanding principal amount, when aggregated with the amount of Incremental the Term Loans incurred pursuant to Section 2.8, not to exceed and/or the Incremental Amount and any Permitted Refinancings thereof2025 Notes; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B5) in the case of any Incremental Equivalent Debt that is unsecured or Refinancing Indebtedness incurred in respect of Indebtedness that is secured by Xxxxx on a second the Collateral that are equal in priority (without regard to control of remedies) with the Obligations, such Refinancing Indebtedness ranks equal or other junior priorityin right of payment with the Obligations and is secured by Liens on the Collateral on an equal or junior priority basis with respect to the Obligations or is unsecured; provided that any such Refinancing Indebtedness that is (A) secured by Liens on the Collateral ranking on an equal priority basis (but without regard to control of remedies) with the Obligations shall be subject to an Equal Priority Intercreditor Agreement or (B) secured by Liens on the Collateral ranking junior in priority to the Liens securing on the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens Collateral securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under shall be subject to a Qualified Real Estate Financing FacilityJunior Priority Intercreditor Agreement; provided thatfurther, immediately before and after giving effect thereto, that any Refinancing Indebtedness that is secured shall have the Loan-to-Value Ratio as same or junior Lien priority of such date (calculated on a pro forma basis after giving effect to Indebtedness that was refinanced by such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided that the aggregate notional amount of all such Swap Contracts shall not exceed $250,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $100,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location or any other warehouse or other leased storage or distribution facility in which $10,000,000 or more of $1,250,000,000 and 5.00% Inventory is or may be located from time to time, the Loan Parties shall cause the holders of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent Contingent liabilities under surety bonds or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person similar instruments incurred in the ordinary course of business for in connection with the purpose construction or improvement of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereofStores;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investmentthan the BNCB Acquisition, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) Indebtedness under the ObligationsSeller Notes and any Permitted Refinancing thereof;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase AgreementPermitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist Preferred Stock of a Guarantor; or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication Indebtedness or Disqualified Stock of Indebtedness described in the Borrower or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; provided further that (x) clause (g2) of this Sectiondefinition will not apply to any Refinancing Indebtedness other than Indebtedness, purchase money Indebtedness Disqualified Stock and Preferred Stock incurred under clauses (2), (14), (25), (29), (30) and (31) of Section 7.02(b) (including any Loan Party successive Refinancings thereof incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement under clause (13) of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, Section 7.02(b)) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Subordinated Indebtedness (other than Earn-Out ObligationsSubordinated Indebtedness assumed or acquired in an Investment or acquisition and not created in contemplation thereof) and (y) Refinancing Indebtedness may be incurred in the form of a Qualifying Bridge Facility which does not require satisfy the payment requirements of clause (2) above. 97 US-DOCS\123992845.16 042525-0274 “Refinancing Loans” means any Refinancing Term Loans. “Refinancing Term Commitments” means one or more Classes of Term Loan commitments hereunder that result from a Refinancing Amendment. “Refinancing Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment. “Refunding Capital Stock” has the meaning specified in cash Section 7.05(b)(2). “Register” has the meaning specified in Section 10.07(c). “Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC. “Regulated Bank” means an Approved Commercial Bank that is (i) a U.S. depository institution the deposits of principal which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors of the Federal Reserve System under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction. “Rejection Notice” has the meaning specified in Section 2.05(2)(g). “Related Business Assets” means assets (other than Cash Equivalents) used or useful in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the AgentsSimilar Business; provided, further, provided that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes assets received by the Borrower or a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (exchange for assets transferred by the Borrower or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary will not be deemed to be Related Business Assets if they consist of securities of a Loan Party (other than Indebtedness incurred solely in contemplation Person, unless upon receipt of the securities of such Person’s becoming , such Person is or would become a Restricted Subsidiary Subsidiary. “Related Indemnified Person” of a Loan Party) and Permitted Refinancings thereof;
an Indemnitee means (i1) the Obligations;
respective directors, officers or employees of such Indemnitee and (j2) Indebtedness arising from indemnification obligations the respective agents of such Indemnitee, in favor the case of SVU pursuant this clause (2), acting at the instructions of such Indemnitee. “Related Person” means, with respect to any Person, (a) any Affiliate of such Person and (b) the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event respective directors, partners, officers, employees, agents and other representatives of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower such Person or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilitiesAffiliates. “Release” means any release, contingent spill, emission, discharge, disposal, leaking, pumping, pouring, dumping, emptying, injection or otherwise, in respect leaching into the Environment. “Relevant Governmental Body” means the Board of letters Governors of credit, acceptances and similar facilities incurred in the ordinary course Federal Reserve System or the Federal Reserve Bank of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insuranceNew York, or other Indebtedness with respect to reimbursementa committee officially endorsed or 98 US-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) takeDOCS\123992845.16 042525-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.0274
Appears in 1 contract
Indebtedness; Disqualified Stock. preferred stock or preference shares (aA) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, of any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness Person outstanding on the Escrow Release Date and listed date on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of a Loan Party (other than Indebtedness incurred solely in contemplation assets and assumption of such Person’s becoming a related liabilities) Parent or any Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from incurred or issued to provide all or any portion of the honoring funds used to consummate the transaction or series of related transactions pursuant to which such Person became a bank Restricted Subsidiary or was otherwise acquired by Parent or a Restricted Subsidiary; provided, however, with respect to this clause (xii), that at the time of the acquisition or other financial institution of a checktransaction pursuant to which such Indebtedness, draft Disqualified Stock, preferred stock or similar instrument drawn against insufficient funds in the ordinary course of businesspreference shares were deemed to be incurred or issued, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) Parent would have been able to incur $3,750,000,000 1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.06(a) after giving pro forma effect to the relevant acquisition or other transaction and the incurrence of such Indebtedness or issuance of such Disqualified Stock, preferred stock or preference shares pursuant to this clause (xii) or (y) the Borrowing Base (measured at Fixed Charge Coverage Ratio for Parent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect date on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amountwhich such additional Indebtedness is incurred or Disqualified Stock or preferred stock is, when aggregated with the amount of Incremental Term Loans incurred or preference shares are, issued pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(ethis clause (xii), both at the time of any such incurrence (and after taken as one period, would not be less than it was immediately prior to giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities acquisition or other property in deposit or securities accounts in connection with transaction and the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type incurrence of such Indebtedness in one or more issuance of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3such Disqualified Stock, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.preferred stock or preference shares;
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $125,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $60,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location, the Loan Parties shall cause the holders of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) the Obligations[intentionally omitted];
(j) Indebtedness arising from indemnification obligations in favor so long as no Event of SVU pursuant to Default shall have occurred and be continuing as of the NAI Purchase Agreementdate of incurrence thereof, including as a result of a breach of Section 7.15 (calculating the Consolidated Fixed Charge Coverage Ratio, if applicable, on a pro forma basis), the Permitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway SafewayLoan Parties and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital CapitalFinance Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved]reserved];Indebtedness existing on the Amendment No. 8 (2019) Effective Date (other than Indebtedness permitted under clauses (i), (t) and (u)) and Permitted Refinancings thereof;
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower BorrowerHoldings or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of Holdings or a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 3,750,000,0005,500,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release ReleaseAmendment No. 8 (2019) Effective Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and and, Existing Safeway Debentures and Existing NALP Notes and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to Holdings, any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower BorrowerLoan Party or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower BorrowerHoldings in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (sst) of Section 10.3.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue or Preferred Stock of a Restricted Subsidiary or the Borrower owing to the Borrower or another Restricted Subsidiary; provided that if the Borrower or a Loan Party Incurs such Indebtedness, Disqualified Stock or (b) createPreferred Stock owing to a Non-Loan Party, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any such Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication Disqualified Stock or Preferred Stock is subordinated in right of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior payment to the acquisition thereofBorrower’s Obligations or Guarantee of such Loan Party, as applicable, pursuant to the Intercompany Note; (j) obligations under Swap Contracts and Permitted Refinancings thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (cash management services Incurred other than Permitted Refinancing thereof), and for speculative purposes; (iiik) such Indebtedness does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and or bank guaranteesguarantees or similar instruments) in respect of customs, self-insurance, performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in obligations provided by the ordinary course of business;
(f) Permitted Ratio Debt and Borrower or any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the AgentsRestricted Subsidiary; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as Disqualified Stock of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any Restricted Subsidiary and Preferred Stock of its Subsidiaries;
any Restricted Subsidiary in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (p) Indebtedness with respect to all obligations and liabilitiesl), contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall does not exceed the greater of (x) $3,750,000,000 195,000,000 and (y) 60.0% of Consolidated EBITDA of the Borrowing Base Group Parties, at any one time outstanding (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent “General Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(eBasket”), both at the time of any such incurrence (and after giving effect thereto)plus, no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge refinancing of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of Disqualified Stock or Preferred Stock permitted under this clause (il) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof, the aggregate amount of Incremental Amounts incurred in connection with such refinancing (it being understood that any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued pursuant to this clause (l) shall cease to be deemed Incurred, issued or outstanding pursuant to this clause (l) but shall be deemed Incurred or issued and will only be required outstanding as Incremental Equivalent Ratio Component Debt from and after the first date on which the Borrower or such Restricted Subsidiary, as the case may be, could have Incurred such Indebtedness or issued such Disqualified Stock or Preferred Stock as Incremental Equivalent Ratio Component Debt (to include the amount and type extent the Borrower or such Restricted Subsidiary is able to Incur any Liens related thereto as Permitted Liens after such reclassification)); (m) any guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any of its Restricted Subsidiaries so long as the Incurrence of such Indebtedness in one or more of other obligations by the above clauses; provided that (i) all Indebtedness outstanding Borrower or such Restricted Subsidiary is permitted under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) terms of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3.this Agreement;
Appears in 1 contract
Samples: Credit Agreement (V2X, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “"Permitted Indebtedness”);"):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway date hereof and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non- defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided that the aggregate notional amount of all such Swap Contracts shall not exceed $250,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $100,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location or any other warehouse or other leased storage or distribution facility in which $10,000,000 or more of $1,250,000,000 and 5.00% Inventory is or may be located from time to time, the Loan Parties shall cause the holders of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent Contingent liabilities under surety bonds or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person similar instruments incurred in the ordinary course of business for in connection with the purpose construction or improvement of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereofStores;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investmentthan the BNCB Acquisition, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings Refinancing thereof;
(i) Indebtedness under the ObligationsSeller Notes and any Permitted Refinancing thereof;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase AgreementPermitted Senior Debt and any Permitted Refinancing thereof;
(k) [reserved]other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified or Preferred Stock of a Borrower or (b) create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except (each, “Permitted Indebtedness”);
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their a Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness of any Loan Party Subsidiary incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the an acquisition of any such assets (including Capital Stock), business or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that (i) the Person in an aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed the greater of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness liquidation preference that does not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets;
(d) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 33,000,000 and (y) the Borrowing Base (measured 33% of Consolidated EBITDA, at the any one time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amountoutstanding, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8plus, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt refinancing of any Indebtedness, Disqualified Stock or Preferred Stock permitted under this clause (dd) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses incurred in connection with such refinancing (it being understood that is unsecured any Indebtedness Incurred or that is secured on a second priority Disqualified Stock or Preferred Stock issued pursuant to this clause (dd) shall cease to be deemed Incurred, issued or other junior priorityoutstanding pursuant to this clause (dd) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt but shall be deemed to be secured Incurred or issued and outstanding as Ratio Debt from and after the first date on a pari passu basis which such Borrower or such Restricted Subsidiary, as the case may be, could have Incurred such Indebtedness or issued such Disqualified Stock or Preferred Stock as Ratio Debt (to the extent such Borrower or such Restricted Subsidiary is able to Incur any Liens securing the Obligations both at the time related thereto as Permitted Liens after such reclassification)); (ee) Indebtedness, Disqualified Stock or Preferred Stock consisting of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness obligations of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities under deferred compensation or other property in deposit or securities accounts similar arrangements incurred by such Person in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower Transactions or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
Investment; (ff) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent constituting Indebtedness, obligations in respect of (i) customer deposits that they are permitted to remain unfunded under applicable law; and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereofIncurred in connection with a Qualified Receivables Factoring or Qualified Receivables Financing, in each case, which constitutes Standard Securitization Undertakings. For purposes of determining compliance with this Section 10.37.01, in the event that an item of Indebtedness Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) abovePermitted Debt or is entitled to be incurred or issued as Ratio Debt, the Parent Borrower shall, in its sole discretion, classify and reclassify at the time of incurrence or later issuance, divide, classify or reclassify reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clausesany manner that complies with this Section 7.01; provided that (i) all Indebtedness under this Agreement incurred on the Closing Date shall be deemed to have been Incurred pursuant to Section 7.01(a), and the Parent Borrower shall not be permitted to reclassify all or any portion of Indebtedness Incurred on the Closing Date pursuant to Section 7.01(a). Accrual of interest (including payment-in-kind) or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of Disqualified Stock or Preferred Stock of the same class, the accretion of liquidation preference and increases in the amount of Indebtedness, Disqualified Stock or Preferred Stock outstanding under solely as a result of fluctuations in the Financing Agreements exchange rate of currencies will at all times not be deemed to be outstanding in reliance only on the exception in clause (i) an Incurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stock for purposes of this Section 10.3, 7.01 and (ii) all Indebtedness under the ABL Facility will be deemed any Lien permitted to be outstanding Incurred with respect to any Indebtedness relating to such amounts shall be permitted to secure such obligations. Guarantees of, or obligations in reliance only on respect of letters of credit relating to, Indebtedness that are otherwise included in the exception determination of a particular amount of Indebtedness shall not be included in clause (s) the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 10.37.01.
Appears in 1 contract
Samples: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) createCreate, incur, assume, guarantee, assume or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except except:
(eachi) Indebtedness under the Loan Documents;
(ii) Indebtedness of the Loan Parties and their Subsidiaries existing on the Closing Date and set forth in Schedule 7.03 (and renewals, “Permitted Indebtedness”refinancings, and extensions thereof on terms and conditions satisfactory to the Administrative Agent in its sole discretion);
(aiii) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereof;
(b) Indebtedness among the Parent Borrower, Safeway and their Restricted Subsidiaries;
(c) Without duplication of Indebtedness described in clause (g) of this Section, purchase money Indebtedness (including obligations in respect of Capital Leases but excluding Synthetic Leases) hereafter incurred by the Loan Parties or any Loan Party incurred after the Escrow Release Date of their Subsidiaries to finance the acquisition, lease, construction or improvement purchase of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, provided that (i) the aggregate principal amount of such Indebtedness permitted by this clause (c) when incurred shall not exceed the greater purchase price of $1,250,000,000 and 5.00% the asset(s) financed, (ii) no such Indebtedness shall be refinanced for a principal amount in excess of Total Assets the principal balance outstanding thereon at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred refinancing plus any reasonable costs and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), premiums and (iii) the total amount of all such Indebtedness does at any time outstanding shall not exceed the cost of acquisition, lease, construction or improvement of such fixed or capital assets$1,000,000 at any time outstanding;
(div) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising under any Swap Contract, Secured Hedge Agreement;
(v) intercompany Indebtedness permitted under Section 7.02(h); provided that such intercompany Indebtedness is evidenced by a demand note (which may cover all such intercompany Indebtedness) in form and substance reasonably satisfactory to the Administrative Agent and, if payable to a Loan Party, is pledged and delivered to the Administrative Agent pursuant to the Security Agreement as additional collateral security for the Obligations, and the obligations are under such demand note shall be subordinated to the Obligations in a manner satisfactory to the Administrative Agent;
(vi) Guarantees with respect to Indebtedness permitted under this Section 7.03.;
(vii) other unsecured Indebtedness in an aggregate principal amount for all such unsecured Indebtedness not exceeding $1,000,000 at any time outstanding;
(viii) To the extent it constitutes Indebtedness, Indebtedness reasonably incurred by any Loan Party (other than Holdings) arising from agreements providing for indemnification, adjustment of purchase price or weresimilar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any such Loan Party pursuant to such agreements, in connection with Permitted Acquisitions or Dispositions permitted by Section 7.05; provided that, in respect of any Indebtedness incurred hereunder pursuant to agreements providing for indemnification in connection with Dispositions permitted by Section 7.05, such Indebtedness shall not exceed the amount of Net Cash Proceeds received from such Dispositions;
(ix) entered into by such Person Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal, completion guarantees, export or import indemnities, customs and revenue bonds or similar instruments, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of any Loan Party in the ordinary course of business for the purpose business, including guarantees or obligations of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations any Loan Party with respect to letters of credit and bank guarantees) in respect of performance, supporting such bid, appeal performance or surety bonds, workers’ compensation claims, self-insurance obligations and surety bonds and similar instruments and performance and completion guarantees and similar obligations, bankers acceptances (in each case, case other than for an obligation for money borrowed) or similar obligations incurred in the ordinary course of business;
(fx) Permitted Ratio Debt Indebtedness arising from the letters of credit outstanding on the Closing Date and any Permitted Refinancing thereofnot constituting a Letter of Credit so long as such letters of credit are secured by a letter of credit or cash collateral reasonably acceptable to the Administrative Agent;
(gxi) Indebtedness with respect to consisting of the deferred purchase price for any of Permitted Acquisition or other Permitted Investment, provided that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the AgentsAcquisitions; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes due;and
(hxii) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing at the time such Person becomes a Restricted Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and Permitted Refinancings thereof;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(l) Indebtedness arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries annual premiums in respect thereof at the any one time of such Incurrence and any Permitted Refinancing thereof;outstanding.
(eeb) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater Issue any shares of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(gg) Contribution Indebtedness and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3Capital Stock which constitute Disqualified Stock.
Appears in 1 contract
Indebtedness; Disqualified Stock. (a) Issue Disqualified Stock or (b) create, incur, assume, guarantee, suffer to exist exist, issue or otherwise become or remain liable with respect to, any Indebtedness, except the following (each, “Permitted Indebtedness”);):
(a) Indebtedness outstanding on the Escrow Release Date and listed on Schedule 10.3 and any Permitted Refinancing thereofSecured Obligations;
(b) Indebtedness among outstanding on the Parent Borrower, Safeway Restatement Effective Date and their Restricted Subsidiarieslisted on Schedule 7.03 and any Permitted Refinancings thereof;
(c) Without Indebtedness of any Loan Party to any other Loan Party and guaranties by any Loan Party of any Indebtedness of any other Loan Party otherwise permitted hereunder;
(d) obligations (contingent or otherwise) of any Loan Party existing or arising under any Swap Contract, provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, that the aggregate notional amount of all such Swap Contracts shall not exceed $25,000,000 at any time outstanding;
(e) without duplication of Indebtedness described in clause (g) of this Sectiondefinition, purchase money Indebtedness of any Loan Party incurred after the Escrow Release Date to finance the acquisition, lease, construction or improvement acquisition of any fixed or capital assets, including Attributable Indebtedness under Capital Lease Obligations and Synthetic Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and any Permitted Refinancings Refinancing thereof, provided, however, that (i) the aggregate principal amount of Indebtedness permitted by this clause (ce) shall not exceed $60,000,000 at any time outstanding and provided, further, that, if requested by the greater Collateral Agent with respect to any Material Storage Location, the Loan Parties shall cause the holders of $1,250,000,000 and 5.00% of Total Assets at the time of incurrence, (ii) such Indebtedness is incurred prior to or within two hundred and seventy (270) days after such acquisition, lease, construction or improvement (other than Permitted Refinancing thereof), and (iii) such Indebtedness does not exceed enter into a Collateral Access Agreement on terms reasonably satisfactory to the cost of acquisition, lease, construction or improvement of such fixed or capital assetsCollateral Agent;
(df) obligations (contingent or otherwise) of any Loan Party or any Restricted Subsidiary thereof existing or arising liabilities under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view”;
(e) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and or similar instruments and performance and completion guarantees and similar obligations, in each case, incurred in the ordinary course of business;
(f) Permitted Ratio Debt and any Permitted Refinancing thereof;
(g) Indebtedness with respect to the deferred purchase price for any Permitted Acquisition or other Permitted InvestmentAcquisition, provided provided, that such Indebtedness (other than Earn-Out Obligations) does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Latest Maturity Date, has a final maturity which extends beyond the Latest Maturity Date, and is subordinated to the Secured Obligations on terms reasonably acceptable to the Agents; provided, further, that any such Indebtedness constituting Earn-Out Obligations is paid within 30 days after such amount becomes dueAdministrative Agent;
(h) Indebtedness of any Person that becomes a Restricted Subsidiary of a Loan Party in a Permitted Acquisition, Permitted Investment (or other acquisition not prohibited hereunder) , which Indebtedness is existing that exists at the time such Person becomes a Restricted Subsidiary of a Loan Party pursuant to a Permitted Acquisition (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Restricted Subsidiary of a Loan Party) and any Permitted Refinancings thereofRefinancing thereof as long as, in the case of any sale-leaseback transaction permitted hereunder with respect to any Material Storage Location, the Collateral Agent shall have received from such purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Collateral Agent;
(i) the Obligations;
(j) Indebtedness arising from indemnification obligations in favor of SVU pursuant to the NAI Purchase Agreement;
(k) [reserved];
(j) [reserved];
(k) other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any time outstanding, provided that the holders of any such Indebtedness first enters into an intercreditor agreement reasonably satisfactory to Administrative Agent providing for the subordination of debt payments (other than permitted subordinated debt payments as may be agreed in the sole discretion of the Administrative Agent) to payment in full of the Secured Obligations;
(l) Indebtedness arising pursuant owed to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
(m) obligations in respect of letters of credit existing as of the Escrow Release Date to secure obligations of the type described in Sections 10.1(c) and 10.1(d);
(n) Guarantees of Indebtedness described in Section 10.3;
(o) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to a Borrower or any of its Subsidiaries;
(p) Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claimsPerson providing worker’s compensation, health, disability or other employee benefits (whether current or former) or property, casualty insurance or liability insurance or self-insurance, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers’ compensation claims;
(q) Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower, Holdings or any other direct or indirect parent of a Borrower permitted by Section 10.6;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangementssuch Person, in each case, in the ordinary course of business;
(A) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements or (B) Indebtedness arising from the honoring of a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within ten Business Days of its incurrence;
(t) ABL Facility Indebtedness; provided that the outstanding amount thereof (excluding in respect of Swap Contracts and Cash Management Obligations constituting ABL Facility Indebtedness) shall not exceed the greater of (x) $3,750,000,000 and (y) the Borrowing Base (measured at the time of incurrence thereof) (as defined in the ABL Credit Agreement as in effect on the Escrow Release Date);
(u) Incremental Equivalent Debt in an aggregate principal amount, when aggregated with the amount of Incremental Term Loans incurred pursuant to Section 2.8, not to exceed the Incremental Amount and any Permitted Refinancings thereof; provided that (A) subject to Section 14.13(e), both at the time of any such incurrence (and after giving effect thereto), no Event of Default shall exist and (B) in the case of any Incremental Equivalent Debt that is unsecured or that is secured on a second priority (or other junior priority) basis to the Liens securing the Obligations, for purposes of determining the Consolidated First Lien Net Leverage Ratio, such Incremental Equivalent Debt shall be deemed to be secured on a pari passu basis to the Liens securing the Obligations both at the time of incurrence and at all times such Incremental Equivalent Debt remain outstanding;
(v) Indebtedness of Real Estate Financing Loan Parties under a Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(w) Credit Agreement Refinancing Indebtedness;
(x) Senior Safeway Acquisition Debt and Permitted Refinancings thereof;
(y) Indebtedness in respect of Existing Safeway Notes and Existing Safeway Debentures and Permitted Refinancings thereof; provided that if such Indebtedness is secured by a Lien, such Lien shall rank junior to the Liens securing the Obligations;
(z) Indebtedness owing by Casa Ley and/or PDC (whether or not owing to any Borrower or any Restricted Subsidiary and Permitted Refinancings thereof);
(aa) Indebtedness secured by cash deposits, securities or other property in deposit or securities accounts in connection with the redemption, defeasance, repurchase or other discharge of any notes;
(bb) [reserved];
(cc) Indebtedness of a Borrower or any Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers in an aggregate amount not to exceed $150,000,000 at any one time outstanding;
(dd) Indebtedness of Foreign Subsidiaries of a Borrower in an amount not to exceed the greater of (x) $750,000,000 or (y) 3.00% of Total Assets of all Foreign Subsidiaries at the time of such Incurrence and any Permitted Refinancing thereof;
(ee) Indebtedness not specifically described herein in an aggregate principal amount not to exceed the greater of (x) $1,000,000,000 or (y) 4.00% of Total Assets at any time outstanding and any Permitted Refinancing thereof;
(ff) to the extent constituting Indebtedness, obligations in respect of (i) customer deposits and advance payments received in the ordinary course of business; (ii) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (iii) any customary cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course of business; and
(ggm) Contribution Indebtedness owed in respect of any overdrafts and any Permitted Refinancing thereof. For purposes of determining compliance with this Section 10.3, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (gg) above, the Parent Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (related liabilities arising from Cash Management Services or any portion thereof) other treasury, depositary and will only be required to include the amount and type cash management services or in connection with any ACH transfer of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Financing Agreements will at all times be deemed to be outstanding in reliance only on the exception in clause (i) of Section 10.3, and (ii) all Indebtedness under the ABL Facility will be deemed to be outstanding in reliance only on the exception in clause (s) of Section 10.3funds.
Appears in 1 contract
