01A Indebtedness. No Loan Party will, nor will it permit any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness, except: (a) the Secured Obligations; (b) Indebtedness existing on the date hereof and set forth on Schedule 6.01A and extensions, renewals and replacements of any such Indebtedness in accordance with clause (f) hereof; (c) Indebtedness of any Borrower to any Subsidiary or any other Borrower and of any Subsidiary to any Borrower or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is not a Loan Party to any Borrower or any Subsidiary that is a Loan Party shall be subject to Section 6.06 and (ii) Indebtedness of any Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in bankruptcy to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent (it being understood that the Company shall have in place agreements for such subordination within 60 days, or such other period as shall be acceptable to the Administrative Agent in its sole discretion, of the Effective Date); (d) Guarantees by any Borrower of Indebtedness of any Subsidiary or any other Borrower and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01A, (ii) Guarantees by any Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.06 and (iii) Guarantees permitted under this clause (d) shall be subordinated to the Secured Obligations of the applicable Subsidiary if, and on the same terms as, the Indebtedness so Guaranteed is subordinated to the Secured Obligations; (e) Indebtedness of any Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital 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; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (i) of Section 6.07, shall not exceed $50,000,000 at any time outstanding; (f) Indebtedness which represents an extension, refinancing, replacement or renewal of any of the Indebtedness described in clauses (b), (e), (i), (j), (k), (l) or (u) hereof; provided that, (i) the principal amount of such Indebtedness is not increased (except to the extent used to finance accrued interest and premium (including tender or makewhole premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (ii) any Liens securing such Indebtedness are not extended to any additional property of any Loan Party or any of their respective Subsidiaries or, if the original Indebtedness was unsecured, then the refinancing, renewal or extension Indebtedness shall be unsecured (other than with Available Collateral), (iii) no Loan Party or Subsidiary of any Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Indebtedness so extended, refinanced or renewed and (v) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Secured Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness; (g) Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; (h) Indebtedness of any Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business; (i) Indebtedness of the Company, any other Loan Party or any other Subsidiary that owns Available Collateral or Collateral incurred to refinance in whole or in part Existing 2013 Notes or Existing 2016 Notes or for any other purpose (it being understood that the proceeds of any such Indebtedness incurred to refinance Existing 2013 Notes or Existing 2016 Notes may be deposited in an account subject to a control agreement reasonably satisfactory to the Administrative Agent pending the application of such proceeds to refinance such Existing 2013 Notes or Existing 2016 Notes (which control agreement shall provide that the Administrative Agent shall have a security interest therein, and control over such proceeds, for the benefit of the Secured Parties subject only to the right of the Borrower, so long as no Event of Default shall have occurred and be continuing, to use such proceeds to refinance Existing 2013 Notes or Existing 2016 Notes)); provided that the aggregate principal amount of Indebtedness at any time outstanding in reliance on this paragraph (i) (net of the amount of any proceeds on deposit in any control account as described above) shall not, when taken together with (1) the aggregate outstanding principal amount of the Existing 2013 Notes and the Existing 2016 Notes (or any refinancing or replacement of the Existing 2013 Notes or the Existing 2016 Notes incurred in reliance on paragraph (f) above (disregarding any principal amount in excess of the original principal amount thereof permitted to be incurred pursuant to the parenthetical contained in clause (i) of such paragraph (f)), other than a refinancing or replacement that can be incurred under clause (j) below, which shall be deemed to use the basket under clause (j) and not the basket under this clause (i)), and (2) the aggregate amount of sale and leaseback transactions consummated pursuant to clause (ii) or (iii) of Section 6.07, exceed $500,000,000; provided further that immediately after giving pro forma effect to the incurrence of any Indebtedness pursuant to this paragraph (i), no Default or Event of Default shall have occurred and be continuing; (j) unsecured Indebtedness of the Company (including preferred Equity Interests) and unsecured Indebtedness of other Loan Parties having no scheduled principal payments or prepayments prior to the Commitment Termination Date; provided that both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing; provided further the aggregate principal amount of Indebtedness permitted by this paragraph (j), together with the liquidation value of all preferred Equity Interests (excluding the liquidation value of any preferred Equity Interests issued as pay-in-kind dividends or distributions) of the Company issued pursuant to Section 6.01B after the Effective Date, shall not exceed $250,000,000 at any time outstanding; (k) Indebtedness of Foreign Subsidiaries or of Foreign Holdcos and unsecured Guarantees of such Indebtedness by the Company; provided that the aggregate principal amount of Indebtedness permitted by this paragraph (k), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (iv) of Section 6.07, at any time outstanding shall not exceed the greater of (x) $100,000,000 and (y) 4.0% of the aggregate assets held by, or related to, the Foreign Subsidiaries of the Company determined at any time in accordance with GAAP as disclosed in the financial statements or in the footnotes to the financial statements of the Company most recently delivered pursuant to Section 5.01(a) or (b) (or, prior to the first such delivery of financial statements, in the financial statements referred to in Section 3.04(a)). (l) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (l) at any time outstanding shall not exceed the greater of $35,000,000 and the amount of such Indebtedness permitted at such time to be outstanding under Section 3.3(b)(vi) of the indenture for the Existing 2016 Notes; (m) Indebtedness arising out of Capital Leases incurred in connection with sale and leaseback transactions permitted by Section 6.07; (n) [reserved]; (o) Indebtedness arising out of customer deposits in the ordinary course of business; (p) Indebtedness with respect to surety bonds and similar arrangements incurred in the ordinary course of business; (q) Indebtedness arising in connection with (i) any Permitted Foreign Securitization or (ii) any Permitted Floorplan Vehicle Transaction; (r) Indebtedness of the Company incurred in connection with insurance premium financing arrangements not to exceed $10,000,000 in the aggregate at any time outstanding; (s) Guarantees of obligations of Persons other than Subsidiaries that are permitted Investments under Section 6.06; (t) other Indebtedness not to exceed $15,000,000 at any time outstanding; (u) Indebtedness of the Company, any other Loan Party or any other Subsidiary that owns a Fond du Lac Facility, including the Fond du Lac Existing Indebtedness, that is secured by assets included in the Fond du Lac Facility; provided that the aggregate principal amount of Indebtedness permitted by this paragraph (u), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (v) of Section 6.07 and the aggregate amount of any refinancing Indebtedness in respect of such Indebtedness incurred in reliance on paragraph (f) above, shall not exceed $70,000,000 at any time outstanding; and (v) Floorplan Receivables Permitted Indebtedness.
Appears in 1 contract
Sources: Credit Agreement (Brunswick Corp)
01A Indebtedness. No Loan Party will, nor will it permit any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness, except:
(a) the Secured Obligations;
(b) Indebtedness existing on the date hereof and set forth on Schedule 6.01A and extensions, renewals and replacements of any such Indebtedness in accordance with clause (f) hereof;
(c) Indebtedness of any Borrower to any Subsidiary or any other Borrower and of any Subsidiary to any Borrower or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is not a Loan Party to any Borrower or any Subsidiary that is a Loan Party shall be subject to Section 6.06 and (ii) Indebtedness of any Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in bankruptcy to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent (it being understood that the Company shall have in place agreements for such subordination within 60 days, or such other period as shall be acceptable to the Administrative Agent in its sole discretion, of the Effective Date);
(d) Guarantees by any Borrower of Indebtedness of any Subsidiary or any other Borrower and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01A, (ii) Guarantees by any Borrower or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.06 and (iii) Guarantees permitted under this clause (d) shall be subordinated to the Secured Obligations of the applicable Subsidiary if, and on the same terms as, the Indebtedness so Guaranteed is subordinated to the Secured Obligations;
(e) Indebtedness of any Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital 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; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (i) of Section 6.07, shall not exceed $50,000,000 at any time outstanding;; Table of Contents
(f) Indebtedness which represents an extension, refinancing, replacement or renewal of any of the Indebtedness described in clauses (b), (eb),(e), (i), (j), (k), or (l) or (u) hereof; provided that, (i) the principal amount of such Indebtedness is not increased (except to the extent used to finance accrued interest and premium (including tender or makewhole premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (ii) any Liens securing such Indebtedness are not extended to any additional property of any Loan Party or any of their respective Subsidiaries or, if the original Indebtedness was unsecured, then the refinancing, renewal or extension Indebtedness shall be unsecured (other than with Available Collateral), (iii) no Loan Party or Subsidiary of any Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Indebtedness so extended, refinanced or renewed renewed, (v) the terms of any such extension, refinancing, or renewal (taken as a whole) are not more restrictive, taken as a whole, than the terms of this Agreement and (vvi) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Secured Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness;
(g) Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(h) Indebtedness of any Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business;
(i) Indebtedness of the Company, any other Loan Party or any other Subsidiary that owns Available Collateral or Collateral incurred to refinance in whole or in part the Existing 2013 Notes or Existing 2016 Notes or for any other purpose (it being understood that the proceeds of any such Indebtedness incurred to refinance Existing 2013 Notes or Existing 2016 Notes may be deposited in an account subject to a control agreement reasonably satisfactory to the Administrative Agent pending the application of such proceeds to refinance such Existing 2013 Notes or Existing 2016 Notes (which control agreement shall provide that the Administrative Agent shall have a security interest therein, and control over such proceeds, for the benefit of the Secured Parties subject only to the right of the Borrower, so long as no Event of Default shall have occurred and be continuing, to use such proceeds to refinance Existing 2013 Notes or Existing 2016 2011 Notes)); provided that the aggregate principal amount of Indebtedness at any time outstanding in reliance on permitted by this paragraph clause (i) (net of shall not exceed the amount of any proceeds on deposit in any control account as described above) shall not, when taken together with (1) the aggregate outstanding principal amount of the Existing 2013 2011 Notes plus any accrued interest and the Existing 2016 Notes (or premiums and any refinancing or replacement of the Existing 2013 Notes or the Existing 2016 Notes underwriting discounts, defeasance costs, fees, commissions and expenses reasonably incurred in reliance on paragraph (f) above (disregarding any principal amount in excess of connection with the original principal amount thereof permitted to be incurred pursuant to the parenthetical contained in clause (i) of such paragraph (f)), other than a refinancing or replacement that can be incurred under clause (j) below, which shall be deemed to use the basket under clause (j) and not the basket under this clause (i)), and (2) the aggregate amount of sale and leaseback transactions consummated pursuant to clause (ii) or (iii) of Section 6.07, exceed $500,000,000refinancing; provided further that immediately after giving pro forma effect to the incurrence of any Indebtedness pursuant to this paragraph (i)thereto, no Default or Event of Default shall have occurred and be continuing;
(ji) unsecured subordinated Indebtedness of the Company (including preferred Equity Interests) and unsecured Indebtedness of other Loan Parties having no scheduled principal payments or prepayments prior to the Commitment Termination Date; provided that both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing; and (ii) other unsecured Indebtedness of the Company (including preferred Equity Interests) having no scheduled principal payments or prepayments prior to the Commitment Termination Date; provided that both immediately before and immediately after giving pro forma effect thereto, (A) no Default or Event of Default shall have occurred and be continuing, (B) the Fixed Charge Coverage Ratio for the Test Period in effect at the time of the incurrence of such Indebtedness shall be at least 1.25 to 1.00 and (C) after giving effect to the application of the proceeds thereof, no Level 3 Minimum Availability Period shall be in effect; provided further the aggregate principal amount of Indebtedness permitted by this paragraph (j), together with the liquidation value of all preferred Equity Interests (excluding the liquidation value of any preferred Equity Interests issued as pay-in-kind dividends or distributions) of the Company issued pursuant to Section 6.01B 6.10B after the Effective Date, shall not exceed $250,000,000 at any time outstanding;; Table of Contents
(k) Indebtedness of Foreign Subsidiaries or of Foreign Holdcos and unsecured Guarantees of such Indebtedness by the Company; provided that the aggregate principal amount of Indebtedness permitted by this paragraph (k), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (iv) of Section 6.07, shall not exceed $100,000,000 at any time outstanding shall not exceed the greater of (x) $100,000,000 and (y) 4.0% of the aggregate assets held by, or related to, the Foreign Subsidiaries of the Company determined at any time in accordance with GAAP as disclosed in the financial statements or in the footnotes to the financial statements of the Company most recently delivered pursuant to Section 5.01(a) or (b) (or, prior to the first such delivery of financial statements, in the financial statements referred to in Section 3.04(a)).outstanding;
(l) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (l) shall not exceed $35,000,000 at any time outstanding shall not exceed the greater of $35,000,000 and the amount of such Indebtedness permitted at such time to be outstanding under Section 3.3(b)(vi) of the indenture for the Existing 2016 Notesoutstanding;
(m) Indebtedness arising out of Capital Leases incurred in connection with sale and leaseback transactions permitted by Section 6.07;
(n) [reserved]Indebtedness arising in respect of the Mercury Facility which shall not exceed $150,000,000 in aggregate principal amount at any time outstanding;
(o) Indebtedness of the Company, any other Loan Party or any other Subsidiary that owns Available Collateral that is secured by Available Collateral; provided that the aggregate principal amount of the Indebtedness incurred pursuant to this paragraph (o), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (iii) of Section 6.07, shall not to exceed $70,000,000 at any time outstanding;
(p) Indebtedness arising out of customer deposits in the ordinary course of business;
(pq) Indebtedness with respect to surety bonds and similar arrangements incurred in the ordinary course of business;
(qr) Indebtedness arising in connection with (i) any Permitted Foreign Securitization or (ii) any Permitted Floorplan Vehicle TransactionSecuritization;
(rs) Indebtedness of the Company incurred in connection with insurance premium financing arrangements not to exceed $10,000,000 in the aggregate at any time outstanding;
(s) Guarantees of obligations of Persons other than Subsidiaries that are permitted Investments under Section 6.06;; and
(t) other Indebtedness not to exceed $15,000,000 10,000,000 at any time outstanding;
(u) Indebtedness of the Company, any other Loan Party or any other Subsidiary that owns a Fond du Lac Facility, including the Fond du Lac Existing Indebtedness, that is secured by assets included in the Fond du Lac Facility; provided that the aggregate principal amount of Indebtedness permitted by this paragraph (u), together with the aggregate amount of sale and leaseback transactions consummated pursuant to clause (v) of Section 6.07 and the aggregate amount of any refinancing Indebtedness in respect of such Indebtedness incurred in reliance on paragraph (f) above, shall not exceed $70,000,000 at any time outstanding; and
(v) Floorplan Receivables Permitted Indebtedness.
Appears in 1 contract
Sources: Credit Agreement (Brunswick Corp)