Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted: (a) The Acquisition; (b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05; (c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06; (d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation; (e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement; (f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement; (g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof; (h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale; (i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired); (j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and (k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will notNone of the Borrowers shall, and will not nor permit any of its Subsidiaries thereof to, wind up, liquidate (x) merge or dissolve its affairsconsolidate with or into, or enter into any transaction of agreement to merge or consolidate with or into, any other Person or otherwise be a party to any merger or consolidation; (y) purchase all or substantially all of the assets and business of another Person (purchases of inventory and materials in the ordinary course of business being permitted and leases and purchases of equipment in the ordinary course of business being permitted subject to Sections 7.3(d) and 7.4(g) hereof), or sell (z) except as set forth in the Supplemental Schedule, lease as lessor, sell, sell-leaseback, license or otherwise dispose convey record or beneficial ownership (whether in one transaction or a series of transactions) of any of its property or assets (including whether now owned or hereafter acquired); except that:
(i) each of the sale of capital stock of Borrowers and any Subsidiaries thereof may sell or otherwise dispose of its Subsidiaries, but excluding any sale or disposition of property or assets Inventory in the ordinary course of its business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(bii) Capital Expenditures by each of the Borrower Borrowers and any Subsidiaries thereof may sell or otherwise dispose of its Subsidiaries Equipment that is obsolete, worn out, unnecessary or no longer used or useful in such Borrower's or Subsidiaries' business, so long as the Net Proceeds of any such sales of Equipment shall be applied to repay the Loans to the extent permitted required by Section 7.052.10(c) of this Agreement;
(ciii) The investmentsany Domestic Borrower may merge or consolidated with or into any other Domestic Borrower and any Foreign Borrower (other than Instron, acquisitions and transfers Ltd.) may merge with or dispositions of property permitted pursuant to Section 7.06into any other Foreign Borrower;
(d) The merger or consolidation or liquidation of (iiv) any Wholly-Owned Domestic Subsidiary of the a Borrower may merge or consolidate with or into another Wholly-Owned Subsidiary of the into, or be liquidated into, a Domestic Borrower or (ii) any Non-Regulated Company that Domestic Subsidiary which is a Wholly-Owned Subsidiary of the a Domestic Borrower with or into the Borrower, so long as the such Domestic Borrower or such Domestic Subsidiary is the surviving entity following corporation, or may dispose of its properties or assets to such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Domestic Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
such Domestic Subsidiary (g) The sale or disposition of equipment that has become obsolete or worn out or whether such disposal is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of lease, sale or other type of transfer except transfers of a merger) assets or the capital stock of any Person (any such acquisitions permitted by type otherwise provided for in this clause (iSection 7.3(a), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(jv) Sales and purchases any Foreign Subsidiary of a Borrower may merge or consolidate with or into, or be liquidated into, a Foreign Borrower or a Domestic Borrower or any Subsidiary which is a Wholly-Owned Subsidiary of a Foreign Borrower or Domestic Borrower so long as such Foreign Borrower or Domestic Borrower, as the case may be, or such Wholly-Owned Subsidiary is the surviving corporation, or may dispose of its properties or assets between one Regulated Insurance Company and another Regulated Insurance Company; and
to such Foreign Borrower or Domestic Borrower or such Wholly-Owned Subsidiary (k) Sales and purchases whether such disposal is by means of assets between one Credit Party and another Credit Party. To the extent the Required Banks (lease, sale or all the Banks to the extent required by Section 11.13) waive the provisions other type of transfer except transfers of a type otherwise provided for in this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.7.3(a));
Appears in 1 contract
Samples: Credit and Security Agreement (Instron Lawrence Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower Parent Company will not, and nor will not it permit any of its Subsidiaries to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs, or enter into any transaction of merger or consolidation; provided, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use inhowever, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(b) Capital Expenditures by the Borrower Parent Company and its Subsidiaries shall be entitled to consummate the extent permitted transactions contemplated by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the BorrowerMerger Agreement; provided further that, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would be directly or indirectly caused as a result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), provided, that thereof,
(i) any Subsidiary of the Parent Company (other than either Borrower or Old PHC) may merge or consolidate with any other Person;
(ii) either Borrower may merge or consolidate with the other Borrower, the Parent Company, Old PHC or any other Person provided that (A) in the case of the merger or consolidation of either Borrower with the Parent Company or Old PHC in which such Person Borrower is not the surviving corporation, the Parent Company or Old PHC (as the case may be) shall execute any and all documentation reasonably requested by the Agent for the purpose of evidencing the Parent Company's or Old PHC's (as the case may be) obligation to assume the indebtedness, liabilities and obligations of such Borrower under the Credit Documents and (B) in the case of the merger or consolidation of either Borrower with any other Person: (1) such Borrower is the surviving corporation; and (2) in the case of any individual transaction (or series of related transactions) where the assets so acquiredacquisition price for such transaction (whether a single transaction or a series of related transactions) wasexceeds $200,000,000, immediately prior then the Borrowers must first demonstrate compliance with the financial covenants under Section 7.11 on a Pro Forma Basis after giving effect to such acquisitiontransaction,
(iii) any Subsidiary of the Parent Company (other than either Borrower) may dissolve, engaged liquidate or wind up its affairs at any time; and
(iv) Old PHC may merge with the Parent Company, Doubletree or usedPHI;
(b) primarily sell, transfer or otherwise dispose of any of its Property (including without limitation pursuant to any sale and leaseback transaction) except that the following shall be permitted: (i) the sale of inventory for fair value in the businesses permitted pursuant to Section 7.01(a)ordinary course of business, (ii) each the sale or disposition of machinery and equipment no longer useful in the conduct of such acquisition shall be for an amount not greater than Person's business, (iii) transfers of Property by and among the fair market value thereof Parent Company and its Subsidiaries or between Subsidiaries of the Parent Company, (iv) transfers of Property to Affiliates of the Parent Company and its Subsidiaries so long as determined such transfers are permitted by Section 8.5 hereof, (v) transfers of Property in good faith order to consummate the transactions contemplated by the Board Merger Agreement, (vi) sales, transfers or other dispositions of Directors Red Lion hotels or former Red Lion hotels and (vii) other sales, transfers or dispositions of Property to the extent that the aggregate net book value of such Property sold, transferred or otherwise disposed of after the Closing Date shall not exceed 50% of the Borrower)net book value of Consolidated Assets as of the date of any such sale, transfer or other disposition on a cumulative basis; provided, however, that if any such sales, transfers or other dispositions (other than any sale, transfer or other disposition of Red Lion hotels or former Red Lion hotels) are of, or relate to, any of the Credit Parties' material servicemarks, trademarks, tradenames, tradedress or any license thereof or the goodwill associated with the use of, and/or symbolized by, any such intellectual property assets of the Borrowers, then the Borrowers shall first demonstrate compliance with the financial covenants under Section 7.11 on a Pro Forma Basis after giving effect to such transaction;
(c) purchase or otherwise acquire (in a single transaction or a series of related transactions) all or substantially all of the Property of any other Person except where (i) no Default or Event of Default then exists or would exist after giving effect thereto, (ii) the purchase or acquisition does not require the solicitation of the consent of the shareholders or other equity owners of the Person which is the subject thereof against the recommendation of management, the board of directors or other managing entity of such Person, (iii) the only consideration paid by Person, division, operations or Property which is the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock subject of the Borrower issued acquisition is in accordance with Section 7.15(a)(i) and preferred stock a related line of business to that of the Borrower issued in accordance with Section 7.15(a)(ii)Parent Company and the Borrowers, and (iv) if the aggregate amount acquisition price for such transaction (whether a single transaction or a series of cash expended by related transactions) shall exceed $200,000,000, the Borrower and its Subsidiaries for Permitted Acquisitions (other than Borrowers first demonstrate compliance with the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) financial covenants under Section 7.11 on a pro forma basis (the pro forma adjustments made by the Borrower pursuant Pro Forma Basis after giving effect to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewithtransaction.
Appears in 1 contract
Samples: Credit Agreement (Promus Hotel Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up(a) Dissolve, liquidate or dissolve wind up its affairs, affairs or enter into any transaction of merger or consolidation; provided, however that (i) the Parent may merge or sell consolidate with any Subsidiary so long as the Parent shall be the continuing or surviving corporation, (ii) any Credit Party other than the Parent may merge or consolidate with any other Credit Party, (iii) any Subsidiary of the Parent that is not a Credit Party may be merged with or into any other Subsidiary of the Parent that is not a Credit Party, (iv) any Subsidiary of the Parent that is not a Credit Party may merge or consolidate with any Credit Party so long as the Credit Party shall be the continuing or surviving corporation, (v) the Parent or any Subsidiary of the Parent may merge with any other Person in connection with a Permitted Acquisition if the Parent or such Subsidiary shall be the continuing or surviving corporation and (vi) any Subsidiary that is not a Credit Party may merge with any other Person in connection with a Permitted Acquisition if, immediately following such merger, the surviving entity is a Subsidiary or Alliance of the Parent.
(b) Sell, lease, transfer or otherwise dispose of any of its property or assets Property (including without limitation pursuant to any sale/leaseback transaction), except for (i) the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement inventory in the ordinary course of business in accordance with its normal underwritingfor fair consideration, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(fii) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of machinery and equipment that has become obsolete no longer used or worn out or is replaced useful in the ordinary course conduct of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower)Person's business, (xiii) no less than 80% the sale of the aggregate sale proceeds of each such sale are in the form of cash accounts receivable and related rights pursuant to a Permitted Receivables Financing and (yiv) the aggregate sale proceeds from all assets subject to such sales pursuant an Asset Disposition provided that, with respect to this clause (hiv), (A) the Property subject to such Asset Disposition shall not in any fiscal year shall not exceed 10% instance (including any series of related transactions) constitute more than five (5) percent (5%) of the Consolidated Net Worth assets of the Borrower Parent on a Consolidated Basis measured as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day end of the most recently ended fiscal quarter of the Borrower with respect to any asset salewhich the Agent has received the Required Financial Information; (B) the Property subject to such Asset Disposition, together with the Borrower and its Subsidiaries would have been Property subject to all other Asset Dispositions consummated in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such same rolling four fiscal quarter and period, shall not in the aggregate constitute more than ten percent (ii10%) of the assets of the Parent on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries Basis measured as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day end of the most recently ended fiscal quarter of with respect to which the Borrower, Agent has received the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for Required Financial Information; (C) the relevant period ended on, the last day Net Proceeds of such fiscal quarterAsset Disposition are applied in the manner set forth in Section 3.3(b), if applicable; and (viiD) no Default or Event of Default would exist after giving effect to such Asset Disposition on a pro forma basis basis.
(the pro forma adjustments made by the Borrower pursuant to this clause (viic) shall be subject to the reasonable satisfaction Acquire all or substantially all of the Administrative Agent) determined as if such acquisition had been consummatedcapital stock, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition business of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, Person except (i) such Collateral in each case shall be sold free connection with a Permitted Acquisition and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any in connection with the Acquisition of the assets and/or capital stock of a SubsidiaryCredit Party, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreementor of a Subsidiary or Alliance of a Credit Party, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewithby another Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Nova Corp \Ga\)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will notCapital ---------------------------------------------------------- Expenditures, and will not permit any etc. -----------------
(i) a member of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any the Consolidated Group may be a party to a transaction of merger or consolidationconsolidation with another member of the Consolidated Group, provided that (A) if the Company is a party thereto, it -------- is the surviving corporation, (B) if the Borrower is a party thereto, the Borrower shall be the surviving corporation (unless the Company is also a party thereto, in which case the Company shall be the surviving corporation), and (C) if a Guarantor is a party thereto, either (I) the Company or the Borrower shall be the surviving corporation, or sell (II) a Guarantor shall be the surviving corporation or the surviving corporation shall be a Domestic Subsidiary and shall become a Guarantor hereunder as an Additional Credit Party pursuant to Section 7.11 concurrently therewith, and (D) no Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto; and
(ii) a member of the Consolidated Group (other than the Company) may be a party to a transaction of merger or consolidation with any other Person, provided that (A) the provisions of Section 7.11 regarding joinder of certain Subsidiaries as Additional Credit Parties hereunder shall be complied with, (B) no Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto, and (C) the provisions of subsection (c) of this Section shall be complied with.
(b) Other than as between Credit Parties or with respect to the Non-Qualified Plan, sell, lease, transfer or otherwise dispose of any of its assets, property or assets and/or operations (including any sale-leaseback transaction, but excluding the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement inventory in the ordinary course of business in accordance with its normal underwriting(regardless of how recorded), indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of plant, property and equipment that has become obsolete or worn out or which is replaced no longer useful in the ordinary course of business or as to which the proceeds therefrom are reinvested in plant, property and the replacement equipment within six months thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;which
(i) So long as (A) in the case of sale-leaseback transactions, shall exceed $5,000,000 in the aggregate from the Closing Date, and (B) in all other cases, shall exceed $500,000 in the aggregate in any fiscal year; and
(ii) no Default or Event of Default then exists would exist after giving effect thereto, without the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld or would result therefromdelayed).
(c) Other than in connection with the Non-Qualified Plan, the Borrower and its Subsidiaries may acquire (including by means all or any portion of a merger) assets or the capital stock of or other ownership interest in any Person (which is not a Subsidiary or all or any such acquisitions permitted by this clause (i)substantial portion of the assets, property and/or operations of a "Permitted Acquisition"), provided, that Person which is not a
(i) in the case of an acquisition of capital stock or other ownership interest after giving effect thereto, such Person (or the assets so acquired) waswill not be a Subsidiary, immediately prior to then such acquisition, engaged (or used) primarily in the businesses permitted pursuant to acquisition will not cause a violation of Section 7.01(a), 8.5;
(ii) each in the case of an acquisition of capital stock or other ownership interest after giving effect thereto, such Person will be a Subsidiary, or in the case of an acquisition of assets, property and/or operations then
(A) the cost of any such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board or series of Directors of the Borrower), (iiirelated acquisitions) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) $10,000,000 in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, instance;
(viB) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases which is the subject of assets between one Regulated Insurance Company and another Regulated Insurance Companythe acquisition shall have approved the acquisition; and
(kC) Sales and purchases no Default or Event of assets between one Credit Party and another Credit Party. To Default would exist after giving effect thereto on a Pro Forma Basis.
(d) Neither the extent Company, the Borrower nor any Subsidiary which is not wholly-owned will liquidate, wind-up or dissolve, whether voluntarily or involuntarily (or suffer to permit any such liquidation or dissolution) without the prior written consent of the Required Banks Lenders, unless in the case of any such Subsidiary (or all other than the Banks to Borrower), such Subsidiary together with other such Subsidiaries hereunder in any fiscal year shall constitute less than five percent (5%) of Consolidated EBITDA for the extent required fiscal year most recently ended.
(e) Alter the character of their business in any material respect from that permitted by Section 11.13) waive 8.3, except with the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear prior written consent of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewithRequired Lenders.
Appears in 1 contract
Samples: Credit Agreement (Pediatric Services of America Inc)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower Parent Company will not, and nor will not it permit any of its Subsidiaries to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs, or enter into any transaction of merger or consolidation; provided, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use inhowever, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(b) Capital Expenditures by the Borrower Parent Company and its Subsidiaries shall be entitled to consummate the extent permitted transactions contemplated by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the BorrowerMerger Agreement; provided further that, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would be directly or indirectly caused as a result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), provided, that thereof,
(i) any Subsidiary of the Parent Company (other than either Borrower or Old PHC) may merge or consolidate with any other Person;
(ii) either Borrower may merge or consolidate with the other Borrower, the Parent Company, Old PHC or any other Person provided that (A) in the case of the merger or consolidation of either Borrower with the Parent Company or Old PHC in which such Person Borrower is not the surviving corporation, the Parent Company or Old PHC (as the case may be) shall execute any and all documentation reasonably requested by the Agent for the purpose of evidencing the Parent Company's or Old PHC's (as the case may be) obligation to assume the indebtedness, liabilities and obligations of such Borrower under the Credit Documents and (B) in the case of the merger or consolidation of either Borrower with any other Person: (1) such Borrower is the surviving corporation; and (2) in the case of any individual transaction (or series of related transactions) where the assets so acquiredacquisition price for such transaction (whether a single transaction or a series of related transactions) wasexceeds $200,000,000, immediately prior then the Borrowers must first demonstrate compliance with the financial covenants under Section 7.11 on a Pro Forma Basis after giving effect to such acquisitiontransaction,
(iii) any Subsidiary of the Parent Company (other than either Borrower) may dissolve, engaged liquidate or wind up its affairs at any time; and
(iv) Old PHC may merge with the Parent Company, Doubletree or usedPHI;
(b) primarily sell, transfer or otherwise dispose of any of its Property (including without limitation pursuant to any sale and leaseback transaction) except that the following shall be permitted:
(i) the sale of inventory for fair value in the businesses permitted pursuant to Section 7.01(a)ordinary course of business, (ii) each the sale or disposition of machinery and equipment no longer useful in the conduct of such acquisition shall be for an amount not greater than Person's business, (iii) transfers of Property by and among the fair market value thereof Parent Company and its Subsidiaries or between Subsidiaries of the Parent Company, (iv) transfers of Property to Affiliates of the Parent Company and its Subsidiaries so long as determined such transfers are permitted by Section 8.5 hereof, (v) transfers of Property in good faith order to consummate the transactions contemplated by the Board Merger Agreement, (vi) sales, transfers or other dispositions of Directors Red Lion hotels or former Red Lion hotels and (vii) other sales, transfers or dispositions of Property to the extent that the aggregate net book value of such Property sold, transferred or otherwise disposed of after the Closing Date shall not exceed 50% of the Borrower)net book value of Consolidated Assets as of the date of any such sale, transfer or other disposition on a cumulative basis; provided, however, that if any such sales, transfers or other dispositions (other than any sale, transfer or other disposition of Red Lion hotels or former Red Lion hotels) are of, or relate to, any of the Credit Parties' material servicemarks, trademarks, tradenames, tradedress or any license thereof or the goodwill associated with the use of, and/or symbolized by, any such intellectual property assets of the Borrowers, then the Borrowers shall first demonstrate compliance with the financial covenants under Section 7.11 on a Pro Forma Basis after giving effect to such transaction;
(c) purchase or otherwise acquire (in a single transaction or a series of related transactions) all or substantially all of the Property of any other Person except where (i) no Default or Event of Default then exists or would exist after giving effect thereto, (ii) the purchase or acquisition does not require the solicitation of the consent of the shareholders or other equity owners of the Person which is the subject thereof against the recommendation of management, the board of directors or other managing entity of such Person, (iii) the only consideration paid by Person, division, operations or Property which is the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock subject of the Borrower issued acquisition is in accordance with Section 7.15(a)(i) and preferred stock a related line of business to that of the Borrower issued in accordance with Section 7.15(a)(ii)Parent Company and the Borrowers, and (iv) if the aggregate amount acquisition price for such transaction (whether a single transaction or a series of cash expended by related transactions) shall exceed $200,000,000, the Borrower and its Subsidiaries for Permitted Acquisitions (other than Borrowers first demonstrate compliance with the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) financial covenants under Section 7.11 on a pro forma basis (the pro forma adjustments made by the Borrower pursuant Pro Forma Basis after giving effect to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewithtransaction.
Appears in 1 contract
Samples: Credit Agreement (Promus Hotel Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), provided, provided that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower etc. Holdings ------------------------------------------------------- will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, or sell convey, sell, lease or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business through distribution arrangements, vendor financial service programs, consignment or otherwise), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) The Acquisitionthe Borrower and its Subsidiaries may lease as lessee or lessor or license as licensee or licensor real or personal property in the ordinary course of business and otherwise in compliance with this Agreement, so long as any such lease or license by the Borrower or any of its Subsidiaries in its capacity as lessor or licensor, as the case may be, does not prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Mortgages in the real property covered by such lease or pursuant to the Security Agreement in the personal property covered by such lease or license, as the case may be;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by not in violation of Section 7.058.08;
(c) The investmentsthe advances, acquisitions investments and transfers or dispositions of property loans permitted pursuant to Section 7.068.05;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivables arising in the ordinary course of business, but only in connection with the compromise or into another Wholly-Owned Subsidiary of collection thereof;
(e) the Borrower and its Subsidiaries may sell or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary exchange specific items of the Borrower with or into the Borrowerequipment, so long as the purpose of each such sale or exchange is to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of the Borrower is and its Subsidiaries, the surviving entity following such merger, consolidation functional equivalent of the item of equipment so sold or liquidationexchanged;
(ef) Any Regulated Insurance Company may enter into any Insurance Contractthe Borrower and its Subsidiaries may, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwritingbusiness, indemnity license as licensee or licensor patents, trademarks, copyrights and retention policies, provided that no Regulated Insurance Company shall enter into know-how to or from third Persons and to one another so long as any Financial Reinsurance Agreement;
(f) The such license by the Borrower or any of its Subsidiaries may enter into leases in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of property a Lien by the Borrower or assets any of its Subsidiaries pursuant to the Security Agreement in the ordinary course of business not otherwise in violation of this Agreementintellectual property covered by such license;
(g) The sale any Foreign Subsidiary may be merged with and into, or disposition be dissolved or liquidated into, or transfer any of equipment that has become obsolete its assets to, any Wholly- Owned Foreign Subsidiary so long as (i) such Wholly-Owned Foreign Subsidiary is the surviving corporation of any such merger, dissolution or worn out or is replaced liquidation and (ii) in each case at least 65% of the ordinary course total combined voting power of business and all classes of capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the replacement thereofPledge Agreement;
(h) Each the assets of any Foreign Subsidiary may be transferred to the Borrower or any of its Wholly-Owned Domestic Subsidiaries, and any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, the Borrower or any of its Wholly-Owned Domestic Subsidiaries so long as the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(i) the Borrower or any of its Wholly-Owned Domestic Subsidiaries may transfer to one or more Wholly-Owned Foreign Subsidiaries those assets theretofore transferred to the Borrower or such Wholly-Owned Domestic Subsidiary by a Foreign Subsidiary (whether by merger, liquidation, dissolution or otherwise) pursuant to clause (h) of this Section 8.02;
(j) the Borrower and its Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of the Borrower may sell or otherwise transfer inventory to the Borrower for resale by the Borrower so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred (or the proceeds thereof, in the case of a transfer to a Foreign Subsidiary) shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(k) the Borrower may contribute cash to one or more Wholly-Owned Domestic Subsidiaries formed after the Initial Borrowing Date in accordance with Section 8.14, so long as the aggregate amount of such cash so contributed to all such Domestic Subsidiaries does not exceed $3,000,000;
(l) the Borrower and its Domestic Subsidiaries may transfer assets (other than inventory) to Wholly-Owned Foreign Subsidiaries so long as the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries, when added to (x) the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries under Section 8.05(g) and (y) the aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 8.05(l), does not exceed S10,000,000;
(m) assets of the Borrower and its Domestic Subsidiaries constituting non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries of the Borrower;
(n) each of the Borrower and its Subsidiaries may sell assets, provided that (wx) each the aggregate sale of proceeds from all assets subject to -------- such sales pursuant to this clause (n) shall not exceed $3,000,000 in any fiscal year of the Borrower, (y) any such asset sale shall be is for an amount at least equal to the 80% in cash and at fair market value thereof (as determined in good faith by the Board of Directors or senior management of the Borrower) and (z) the Net Proceeds therefrom have either resulted in a permanent reduction to the Total Revolving Loan Commitment as provided in section 3.03(c) or are reinvested to the extent permitted by section 3.03(c), .
(xo) no less than 80% each of the aggregate sale proceeds of each such sale are in the form of cash Borrower and (y) its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such -------- sales pursuant to this clause (h), o) shall not exceed $250,000 in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset saleBorrower;
(ip) So so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions acquisition permitted by this clause (ip), a "Permitted Acquisition"), provided, that (i) such Person (or -------- the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(asection 8.01(a), (ii) each if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or (B) such Person is merged with and into the Borrower or a Wholly-Owned Subsidiary of the Borrower (with the Borrower or such Wholly- Owned Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of section 8.14 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid in connection with such Permitted Acquisition consists of cash (including cash constituting the proceeds of Revolving Loans hereunder), Holdings Common Stock (valued based on the then current trading price for such Holdings Common Stock), Permitted Holdings PIK Securities (valued at the aggregate liquidation preference thereof in the case of preferred stock and the aggregate face amount thereof in the case of indebtedness) and/or additional Indebtedness incurred pursuant to section 8.04(p), and (v) (x) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $15,000,000 and less than or equal to $25,000,000 (with both of the foregoing amounts to be increased, as of any date, by the Cumulative Income and Equity Amount as determined as of such date (after giving effect to any other transactions that have occurred on such date that would reduce the Cumulative Income and Equity Amount)) shall not be consummated without the prior written consent of the Required Banks unless the Pro Forma Leverage Ratio on the date of such acquisition is less than 2.50:1.00 and (y) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $25,000,000 (plus, as of any date, the Cumulative Income and Equity Amount as determined as of such date (after giving effect to any other transactions that have occurred on such date that would reduce the Cumulative Income and Equity Amount)) shall not be consummated without the prior written consent of the Required Banks;
(q) any Domestic Subsidiary of the Borrower may transfer assets (other than inventory) to the Borrower or to any other Wholly-Owned Domestic Subsidiary of the Borrower so long as the security interests granted to the Collateral Agent for an the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(r) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly-Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger);
(s) any Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly-Owned Domestic Subsidiary of the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(t) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including, without limitation, patents, trademarks, copyrights and know-how) which, in the reasonable judgment of the Borrower or such Subsidiary, are determined to be uneconomical, negligible or obsolete in the conduct of its business;
(u) the Borrower and its Subsidiaries may, in the ordinary course of business, engage in vehicle sale-leaseback transactions so long as the aggregate amount of sales thereunder does not greater than exceed $200,000;
(v) the Borrower and its Subsidiaries may effect the Designated Real Property Sale, provided that the Designated Real Property Sale is at fair -------- market value thereof (value, as determined in good faith by the Board of Directors or senior management of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or disposed of as permitted by this Section 7.028.02 (and such Collateral is permitted to be released from the Liens created by the respective Security Document), (i) such Collateral in each case shall be sold or otherwise disposed of free and clear of the Liens in favor of created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions actions) as the Administrative Agent or the Collateral Agent reasonably deems are appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Nutraceutical International Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up(a) Dissolve, liquidate or dissolve its affairs, wind up their affairs or enter into any transaction of merger or consolidation; provided, however that (i) the Parent may merge or sell consolidate with any Subsidiary so long as the Parent shall be the continuing or otherwise dispose surviving corporation, (ii) any Credit Party other than the Parent may merge or consolidate with any other Credit Party, (iii) any Subsidiary of the Parent that is not a Credit Party may be merged with or into any other Subsidiary of its property the Parent that is not a Credit Party, (iv) any Subsidiary of the Parent that is not a Credit Party may merge or assets consolidate with any Credit Party so long as the Credit Party shall be the continuing or surviving corporation and (including v) the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all Parent or any part Subsidiary of the property Parent may merge with any other Person in connection with a Permitted Acquisition if the Parent or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following such Subsidiary shall be permitted:
(a) The Acquisition;the continuing or surviving corporation.
(b) Capital Expenditures by Make any Asset Dispositions other than (A) the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions sale of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement inventory in the ordinary course of business in accordance with its normal underwritingfor fair consideration, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(fB) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of machinery and equipment that has become obsolete no longer used or worn out or is replaced useful in the ordinary course conduct of business and the replacement thereof;
such Credit Party's business, or (hC) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be other Asset Dispositions for an amount at least equal to consideration not less than the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in during any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition")year, provided, that (i) such Person with respect to each Asset Disposition, the Parent shall apply (or cause to be applied) an amount equal to the assets so acquiredNet Cash Proceeds of such Asset Disposition to prepay the Term Loans in accordance with the terms of Section 3.3(b)(iii) wasand (ii) for any Asset Disposition in which the Net Cash Proceeds to be received exceeds $15,000,000 or if the amount of Net Cash Proceeds to be received for such Asset Disposition together with the Net Cash Proceeds Received from other Assets Dispositions occurring during such fiscal year would exceed $25,000,000, immediately then no later than 20 days prior to such acquisitionAsset Disposition, engaged the Agent and the Lenders shall have received (or usedA) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for a certificate of an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors officer of the Borrower)Parent specifying the anticipated or actual date of such Asset Disposition, (iii) briefly describing the only assets to be sold or otherwise disposed of and setting forth the net book value of such assets, the aggregate consideration paid by and the Borrower and its Subsidiaries Net Cash Proceeds to be received for such assets in connection with any Permitted Acquisition shall such Asset Disposition and (B) such documents, instruments and certificates (including, without limitation a Pro Forma Compliance Certificate) as the Agent may request so as to evidence the Credit Parties to be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 the terms of this Agreement as of, or for the relevant period ended on, the last day of Section 7.09 after giving effect to such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);Asset Disposition.
(jc) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (Acquire all or substantially all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock or business of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate any Person except in connection therewithwith a Permitted Acquisition.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets (including, without limitation, the sale of obsolete assets) in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The AcquisitionTransaction;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided PROVIDED that no Regulated Insurance Company shall enter into any Financial Reinsurance AgreementAgreements;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided PROVIDED that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are results in consideration in the form of cash and cash, (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause and (h), g) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last first day of the immediately preceding such fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, provided that (i) on a pro forma PRO FORMA basis (the pro forma PRO FORMA adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma PRO FORMA basis (the pro forma PRO FORMA adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, consummated the covenants contained in Sections 7.10 through 7.14 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(ih) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (ih), a "Permitted Acquisition"), providedPROVIDED, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisitionafter giving effect to any reinsurance or similar arrangement) shall not in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last first day of the immediately preceding such fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (viiv) on a pro forma PRO FORMA basis (the pro forma PRO FORMA adjustments made by the Borrower pursuant to this clause (viiv) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (viiv) on a pro forma PRO FORMA basis (the pro forma PRO FORMA adjustments made by the Borrower pursuant to this clause (viiv) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viiivi) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(i) The Borrower and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of the Borrower and its Subsidiaries, the functional equivalent of the item of equipment so sold or exchanged;
(j) Sales The Borrower or any of its Subsidiaries may sell assets so long as (x) the Borrower or such Subsidiary immediately leases such assets back and purchases (y) the aggregate amount of such assets between one Regulated Insurance Company and another Regulated Insurance Companysold in any fiscal year does not exceed $4,000,000; and
(k) Sales The Borrower and purchases its Subsidiaries may sell all of assets between one Credit Party the stock, or all or substantially all of the assets, of the Non-Regulated Companies listed on Annex X, PROVIDED that (x) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower) and another Credit Party(y) each such sale results in consideration in the form of cash. To the extent the Required Banks (or all the Banks to the extent required by Section 11.1311.12) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent Secured Creditors created by the Collateral Documents, Pledge Agreement and (ii) if such Collateral includes any all of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, ; and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Ceres Group Inc)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The Acquisition;[Intentionally Omitted]
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreement;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the last day of the immediately preceding fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "“Permitted Acquisition"”), provided, provided that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal year, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "“hostile" ” basis (i.e., without the consent of the Board of Directors of the Person to be acquired);
(j) Sales and purchases of assets between one Regulated Insurance Company and another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.13) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent created by the Collateral Documents, (ii) if such Collateral includes any of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Consolidation, Merger, Sale or Purchase of Assets. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets (including obsolete or worn out property) in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) The AcquisitionTransaction;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 7.06;
(d) The merger or consolidation or liquidation of (i) any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower or (ii) any Non-Regulated Company that is a Wholly-Owned Subsidiary of the Borrower with or into the Borrower, so long as the Borrower is the surviving entity following such merger, consolidation or liquidation;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance AgreementAgreements;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) The sale or disposition of equipment that has become obsolete or worn out or is replaced in the ordinary course of business and the replacement thereof;
(h) Each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) no less than 80% of the aggregate sale proceeds of each such sale are in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (h), g) in any fiscal year shall not exceed 1020% of the Consolidated Net Worth of the Borrower as of the last first day of the immediately preceding such fiscal year (it being understood and agreed that, for purposes of this clause (y), the aggregate sale proceeds from a sale by a Regulated Insurance Company of assets and related liabilities by way of a Reinsurance Agreement or a Retrocession Agreement shall be deemed to be the Surplus Increase (if positive) to such Regulated Insurance Company as a result of such sale), provided, further, that (i) on a pro forma 42 basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.14 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale;
(ih) So long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire (including by means of a merger) assets or the capital stock of any Person (any such acquisitions permitted by this clause (ih), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the only consideration paid by the Borrower and its Subsidiaries in connection with any Permitted Acquisition shall be cash, common stock of the Borrower issued in accordance with Section 7.15(a)(i7.14(a)(i) and preferred stock of the Borrower issued in accordance with Section 7.15(a)(ii7.14(a)(ii), (iv) the aggregate amount of cash expended by the Borrower and its Subsidiaries for Permitted Acquisitions (other than the Acquisition) in any fiscal year shall not exceed (A) during the period from the Initial Borrowing Date to and including June 30, 2000, 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of Initial Borrowing Date and (B) thereafter, during each successive period from July 1 of a given year to and including June 30 of the immediately following calendar year (each such period, a "Measurement Period"), 15% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal yearMeasurement Period, (v) the aggregate value of Borrower common stock and preferred stock issued by the Borrower as consideration for Permitted Acquisitions (valued in good faith by the Borrower) in any fiscal year shall not exceed (A) during the period from the Initial Borrowing Date to and including June 30, 2000, 25% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the Initial Borrowing Date and (B) thereafter, during each Measurement Period, 35% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the last day of the immediately preceding fiscal yearMeasurement Period, (vi) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.14 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (vii) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (vii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.14 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (viii) no such acquisition shall be consummated on a "hostile" basis (i.e., without the consent of the Board of Directors of the Person to be acquired);; and
(ji) Sales and purchases or other dispositions of assets between from one Regulated Insurance Company and to another Regulated Insurance Company; and
(k) Sales and purchases of assets between one Credit Party and another Credit Party. To the extent the Required Banks (or all the Banks to the extent required by Section 11.1311.12) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Collateral Agent Secured Creditors created by the Collateral Documents, Pledge Agreement and (ii) if such Collateral includes any all of the assets and/or capital stock of a Subsidiary, such assets and/or capital stock shall be released from the Pledge Agreement and/or Security Agreement, as applicable, and such Subsidiary shall be released from the Subsidiary Guaranty Guaranty; and (iii) the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
