Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction. (b) The provisions of Section 412(a) shall not apply to: (i) any Restricted Payment Transaction, (1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof, (iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity, (iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto, (v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company, (vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity, (vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and (viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 5 contracts
Sources: Indenture (VWR Funding, Inc.), Indenture (VWR International, Inc.), Indenture (VWR International, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary Subsidiary, or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viiivii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 5 contracts
Sources: First Supplemental Indenture (Graphic Packaging Holding Co), Supplemental Indenture (Graphic Packaging Holding Co), Indenture (Graphic Packaging Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 40.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer officer, director or director consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Borrower or such SubsidiarySubsidiary or such Parent), (4) any transaction with an officer or director of the Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 100,000.00 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries, and/or one or any Receivables Entitymore Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date (other than any Tax Sharing Agreement or Management Agreement referred to in subsection 7.6(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyBorrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including and (12) payment payments to CDR CD&R, ▇▇▇▇ Capital or Carlyle or any Affiliate of CDR their respective Affiliates (w) of a fee of up to $18.0 million plus any and all out-of-pocket expenses in connection with the Transactions, and (2x) payment to CDR for any management consulting, financial advisory, financing, underwriting or any Affiliate placement services or in respect of CDR of fees other investment banking activities, of up to $2.0 7.5 million in any fiscal yearyear (or such other amount as may be approved by a majority of the Disinterested Directors), and fees (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), the execution, delivery and performance of all agreements and instruments in connection with the Transactions, and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower,
(x) any amendment, supplement, waiver or other modification to or of the Senior Unsecured Notes, the Senior Unsecured Notes Indenture or any related agreements, documents and instruments, or any of the terms and provisions of any thereof, to provide for the payment of interest in cash instead of in additional principal, or in additional principal instead of in cash, in each case in whole or in part, and
(xi) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all Investors constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities.
Appears in 4 contracts
Sources: Credit Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or Property, the rendering of any service) service or the payment of any management, advisory or similar fees, with any Affiliate (other than transactions between or among the Parent Borrower and the Subsidiary Guarantors) that involves consideration in excess of the Company $2,500,000 for such transaction unless such transaction is (an “Affiliate Transaction”a) unless not otherwise prohibited under this Agreement and (ib) the upon fair and reasonable terms of such Affiliate Transaction are not materially no less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time it would obtain in a comparable arm’s length transaction with a Person who which is not such an Affiliate and Affiliate, except that this Section 7.10 shall not prohibit (i) the sale, transfer, encumbrance or other disposition by the Parent Borrower or its Subsidiaries to a Subsidiary of accounts receivable or related ancillary rights or assets, or interests therein, pursuant to a Receivables Transfer Program, (ii) if such Affiliate Transaction involves aggregate consideration in excess overhead and other ordinary course allocations of $15.0 millioncosts and services on a reasonable basis, (iii) allocations of tax liabilities and other tax-related items among the terms Parent Borrower and its Affiliates based principally upon the financial income, taxable income, credits and other amounts directly related to the respective parties, (iv) any incurrence of such Affiliate Transaction have been approved Indebtedness not prohibited by a majority of the Disinterested Directors. For purposes of this Section 412(a)7.2, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(iiii) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsnot prohibited by Section 7.6, (2iv) any Investment permitted by Section 7.8 specifically contemplated by Section 7.8 to be made among Affiliates or (v) transactions between or among the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of Parent Borrower and its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business which are pursuant to customary transfer pricing arrangements or for the achievement of operating efficiencies (but not involving more than $100,000 in any one case, (x) an Investment not specifically contemplated by Section 7.8 to be made among Affiliates or (5y) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms an Asset Sale not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management otherwise permitted under this Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 4 contracts
Sources: Credit Agreement (CONMED Corp), Credit Agreement (CONMED Corp), Credit Agreement (Conmed Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (arrangement including the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) , with any Affiliate of the Company (each an “Affiliate Transaction”) unless ), unless:
(i) the terms of such Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to be obtained at the time in a comparable transaction with at such time on an arms’-length basis from a Person who that is not such an Affiliate and of the Company;
(ii) if in the event that such Affiliate Transaction involves aggregate consideration payments, or transfers of property or services with a Fair Market Value, in excess of $15.0 millionU.S.$5,000,000, the terms of such Affiliate Transaction have been shall be approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if Board of Directors (x) such Affiliate Transaction is approved by including a majority of the Disinterested disinterested members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors or has determined that such transaction complies with the preceding provisions; and
(yiii) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to that such Affiliate Transaction (other than a Qualified Securitization Transaction) involves aggregate payments, or transfers of property or services with a Fair Market Value, in excess of U.S.$15,000,000, the Company shall obtain a favorable opinion as to the fairness of such Affiliate Transaction to the Company and the relevant Restricted Subsidiary (if any) from a financial point of view from an Independent Financial Advisor and file the same with the Trustee.
(b) The provisions of Section 412(a3.9(a) shall not apply to:
(i) Affiliate Transactions between the Company and any of its Wholly-Owned Restricted Payment Transaction,Subsidiaries or between Wholly-Owned Restricted Subsidiaries of the Company;
(1ii) any payment of reasonable and customary fees to directors of the entering into, maintaining Company for their services in such capacity;
(iii) Affiliate Transactions or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with payments pursuant to any employee, officer or director heretofore compensation or hereafter benefit plans or arrangements entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) each of which shall be consistent with past practice and shall be approved by the payment compensation committee of compensation, performance the board of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,Grupo Iusacell;
(iv) Affiliate Transactions undertaken pursuant to any transaction arising out of agreements contractual obligations or instruments rights in existence on the Issue Date, Date (as in effect on the Issue Date with modifications and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms extensions thereof not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect adverse to the Company and its Restricted Subsidiaries); provided that (1) such contractual obligations or rights are on terms no less favorable than those that could have reasonably been expected to be obtained in a comparable transaction at the time entered into on an arms’-length basis from a Person that is not an Affiliate of the Company and (2) in the event such contractual obligations or rights involved at the time entered into aggregate payments, andor transfers of property or services with a Fair Market Value, in excess of U.S.$5,000,000, the terms of such Affiliate Transactions were approved by a majority of the disinterested members of the Board of Directors;
(viiiv) the Transactions, all transactions in connection therewith payments to Grupo Iusacell of customary tax sharing payments and reasonable transaction costs related to financings (including the financing thereof), and all fees and expenses paid or payable related to the restructuring of its Indebtedness); or
(vi) any Restricted Payments made in connection compliance with the TransactionsSection 3.6.
Appears in 4 contracts
Sources: Indenture (Iusacell S a De C V), Indenture (Inmobiliaria Montes Urales 460 S a De C V), Indenture (Iusacell S a De C V)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of the greater of $15.0 million65 million and 10% of Consolidated EBITDA, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a6.05(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a6.05(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall 6.05 will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) (x) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of businessbusiness and (y) the payments contemplated under clause (r) of the definition of Consolidated Net Income, (3) the payment of reasonable fees and out-of-pocket expenses to directors of the Borrower or any Parent Company or any of its Subsidiaries (as determined in good faith by the Company Borrower or such Subsidiary), or (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 120,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) (A) any transaction between or among any of the Borrower and one or more Restricted Subsidiaries and (B) sales of Securitization Assets in connection with the Company, any Restricted Subsidiary or Qualified Securitization Financing with any Receivables EntitySecuritization Subsidiary,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date and set forth on Schedule 6.05, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyBorrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary Subsidiary, on the one hand, and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity, on the other hand, if either (1) such transaction is in the ordinary course of business or (2) such transaction is approved by a majority of the Disinterested Directors,
(vii) any issuance or sale of Capital Stock (other than Disqualified Stock) of the execution, delivery and performance Borrower or capital contribution to the Borrower,
(viii) [reserved],
(ix) the issuance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Equity Interests or equity-based awards of Holdings or any Affiliate direct or indirect parent thereof to any officer, director, employee or consultant of CDR the Loan Parties or any of a fee their Subsidiaries,
(x) employment and severance arrangements between the Loan Parties and/or Restricted Subsidiaries and their respective officers and employees in the ordinary course of up business and transactions pursuant to $18.0 million plus stock option plans and employee benefit plans and arrangements,
(xi) the payment of customary fees and reasonable out-of-pocket expenses in connection with the Transactionscosts to, and (2) payment to CDR or indemnities provided on behalf of, directors, officers and employees of any Affiliate Loan Party and the Restricted Subsidiaries in the ordinary course of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect business to the Company extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, and
(viiixii) the Transactionsissuance or transfer of Equity Interests (other than Disqualified Stock) of Holdings to any of its equity holders or to any former, all transactions in connection therewith current or future director, manager, officer, employee or consultant (including or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the financing thereof)foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof to the extent otherwise permitted by this Agreement and all fees and expenses paid to the extent such issuance or payable in connection with the Transactionstransfer would not give rise to a Change of Control.
Appears in 4 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with a an unrelated Person who is not an Affiliate or, if in the good faith judgment of the Board of Directors of the Company,, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(vi2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company, if any. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(2) transactions between or approved by a majority among any of the Board of Directors, between the Company or any and its Restricted Subsidiary and any Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company controlled by solely because the Company that is a joint venture or similar entity,owns an Equity Interest in such Person;
(vii4) transactions effected in accordance with the executionterms of agreements that are in effect on the Issue Date, delivery and performance any amendment or replacement of any Tax Sharing Agreement of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any Management Agreementsmaterial respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including (1) payment to CDR reimbursement or any Affiliate advancement of CDR of a fee of up to $18.0 million plus out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in connection accordance with the TransactionsPartnership Agreement as in effect on the Issue Date and as it may be amended, and provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment; and
(29) payment in the case of contracts for the purchase or sale of Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to CDR those contained in similar contracts entered into by the Company or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection its Restricted Subsidiaries with any acquisition, merger, recapitalization third parties or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions Subsidiaries than those that would be available in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection a transaction with the Transactionsan unrelated third party.
Appears in 4 contracts
Sources: Indenture (Calumet, Inc. /DE), Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) such Affiliate Transaction is entered into in good faith and the terms of such Affiliate Transaction are not materially less favorable are, taken as a whole, fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 25.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness the Company or such Restricted Subsidiary receives an opinion is provided by in customary form from a nationally recognized appraisal or investment banking firm with respect to the effect that such Affiliate TransactionTransaction is fair to the Company or such Restricted Subsidiary from a financial point of view.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), or (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with with, including an investment in, the Company, any Restricted Subsidiary Subsidiary, or any Receivables Special Purpose Entity,;
(iv) any transaction arising out of agreements the Separation and Distribution Agreement, dated as of July 27, 2006 (as amended, modified or instruments supplemented in accordance with its terms), among Avis Budget Group, Inc., Realogy Corporation, Wyndham Worldwide Corporation and Travelport Inc. in existence on the Issue Date, and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of DirectorsBoard, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,;
(viivi) the execution, delivery and performance of any Tax Sharing Agreement and Agreement;
(vii) any Management Agreements, including issuance or sale of Capital Stock (1other than Disqualified Stock) payment of the Company or capital contribution to CDR the Company;
(viii) transactions with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any Affiliate of CDR of a fee of up to $18.0 million plus outits Subsidiaries, where such Affiliates hold less Indebtedness or Capital Stock than non-ofAffiliates and such Affiliates receive the same consideration as non-pocket expenses Affiliates in connection with the Transactions, and such transactions;
(2ix) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection transaction with any acquisition, merger, recapitalization Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; and
(x) transactions exclusively between or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to among the Company and any of its Restricted Subsidiaries, and
(viii) the Transactions, all provided such transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsare not otherwise prohibited by this Indenture.
Appears in 4 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Transactions with Affiliates. (a) The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary toof its Subsidiaries (other than any Permitted Business Combination Entity), directly or indirectly, to enter into or conduct permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with ), involving aggregate consideration in excess of US$5.0 million, with, or for the benefit of, any Affiliate of the Company Parent Guarantor or any of its Subsidiaries (it being understood that Permitted Business Combination Entities shall be deemed to be Affiliates for these purposes), other than the Parent Guarantor or any of its Subsidiaries (other than the Permitted Business Combination Entities) (an “Affiliate Transaction”) unless (i) such Affiliate Transaction is approved by the terms Board of Directors of the Parent Guarantor and, in the case of Affiliate Transactions involving aggregate consideration in excess of US$15.0 million, the Parent Guarantor shall have obtained a favorable opinion as to the fairness of such Affiliate Transaction to the Parent Guarantor and any such Subsidiary, as applicable, from an independent financial advisor prior to the consummation thereof, and (ii) the terms of the Affiliate Transaction are not materially no less favorable to the Company Parent Guarantor or such Restricted Subsidiary, as the case may be, any of its Subsidiaries than those that could be obtained at the time of the Affiliate Transaction in a transaction arm’s length dealings with a Person person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionAffiliate.
(b) The following transactions will be deemed to not be Affiliate Transactions, and therefore will not be subject to the provisions of Section 412(a) shall not apply to:
this covenant: (i) the issuance of Qualified Capital Stock to Affiliates of the Parent Guarantor or any Restricted Payment Transaction,
of its Subsidiaries, (1ii) the entering into, maintaining or performance of any employment contractagreement, confidentiality agreement, non-competition agreement, incentive plan, employee stock option agreement, long-term incentive plan, profit sharing plan, employee benefit plan, indemnification agreement, union agreement, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement entered into with or for or with the benefit of any employee, officer officer, director or director heretofore consultant by the Parent Guarantor or hereafter any of its Subsidiaries in the ordinary course of business and payments pursuant thereto, (iii) transactions with customers, clients, suppliers or purchasers or sellers of goods or services in the ordinary course of business or transactions with joint ventures, alliances or alliance members entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) transactions between or among the Parent Guarantor and/or its Subsidiaries or transactions between a Receivables Subsidiary and any transaction arising out of agreements or instruments Person in existence on which the Issue DateReceivables Subsidiary has an Investment, and any payments made pursuant thereto,
(v) upon and after the occurrence of a Permitted Change of Control Effective Date, any Permitted Group Transaction; provided that any transaction involving both a Permitted Business Combination Entity and an Azul Group Entity shall only be permitted if such transaction is described by clause (b)(v) or if such transaction is in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction compliance with a Person who is not an Affiliate of the Company,
clause (vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereofa), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 3 contracts
Sources: Indenture, Indenture (Azul Sa), Indenture (Azul Sa)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Recourse Subsidiaries to, directly or indirectly, enter into or conduct engage in any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate payments or consideration in excess of $10,000,000, unless:
(i) the terms of such Affiliate Transaction transaction are not materially less favorable when taken as a whole to the Company or such Subsidiary as terms that would be obtainable at the time for a comparable transaction or series of similar transactions in arm’s-length dealings with an unrelated third Person, and
(ii) to the extent that such transaction (other than Indebtedness issued by the Company which is permitted under Section 11.2) is known by the Board of Directors of the Company to involve an Affiliate of the Company, other than any purchase or sale of inventory in the ordinary course of business, involving aggregate payments or other consideration in excess of $20,000,000, such transaction has been approved (and the value of any noncash consideration has been determined) by all of the independent members of the Board of Directors of the Company and the Company delivers to the Administrative Agent a certificate executed by a Responsible Officer evidencing such approval (provided that if no member of the Board of Directors of the Company is independent, the Company may deliver to the Administrative Agent a letter from a nationally recognized investment banking firm stating that the financial terms of such transaction are fair to the Company from a financial point of view or meets the requirements of Section 11.10(a)(i)).
(b) Nothing contained in this Section 11.10 shall prohibit:
(i) the Company from making Restricted SubsidiaryPayments permitted by Section 11.7;
(ii) any transaction under the Company Tax Sharing Agreement;
(iii) [Intentionally Omitted.]
(iv) any transaction with an officer, director, manager, employee or consultant of the Company, of Parent or of any Subsidiary of the Company (including compensation or employee benefit arrangements with any such officer, director, manager, employee or consultant in the ordinary course of business);
(v) any business or transaction with a Permitted Joint Venture between the Company or any of its Subsidiaries, on the one hand, and a third party that is not directly or indirectly controlled by an Affiliate of the Company, on the other hand;
(vi) any transaction pursuant to which a Parent or any Affiliate of the Company will provide the Company and its Subsidiaries at their request and at the cost to such Parent or such Affiliate with certain allocated services, including services to be purchased from third party providers, such as legal and accounting services, tax, consulting, financial advisory, corporate governance, insurance coverage and other services;
(vii) payments by the Company or a Subsidiary of the Company to a Parent or any Affiliate of the Company for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by a majority of the members of the Board of Directors of the Company in good faith;
(viii) [Intentionally Omitted.];
(ix) transactions in which the Company or any Recourse Subsidiary of the Company, as the case may be, than those delivers to the Administrative Agent a letter from a nationally recognized investment banking firm stating that could be obtained at such transaction is fair to the time in Company or such Subsidiary from a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess financial point of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied view or meets the requirements set forth in this of Section 412(a) if 11.10(a)(i);
(x) such Affiliate Transaction is approved investments by a majority Parent or any Affiliate of the Disinterested Directors or Company in securities (yother than Capital Stock) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Recourse Subsidiaries so long as (as determined in good faith i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment to be held by the Company such Parent or such Subsidiary), Affiliate constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities;
(4xi) any transaction with an officer Affiliate in which the consideration paid by the Company or director any Recourse Subsidiary of the Company consists only of Capital Stock of Revlon (other than Redeemable Stock or Exchangeable Stock);
(xii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services that are Affiliates, in each case, in the ordinary course of business not involving more than $100,000 and otherwise in any one case, or (5) Management Advances compliance with the terms of this Agreement that are fair to the Company and payments in respect thereof,
(iii) any transaction with the Recourse Subsidiaries of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority good faith determination of the Board of DirectorsDirectors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(xiii) [Intentionally Omitted.];
(xiv) any transaction contemplated by Section 11.7 (v) or Section 11.7 (vi); and
(xv) any transaction between the Company or any Restricted a Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiariesown employee stock ownership plan and the issuance or transfer of Non-Convertible Capital Stock of the Company to Revlon or to any director, and
manager, officer, employee or consultant of the Company, its Subsidiaries or any direct or indirect parent company thereof (viii) the Transactionsor their estates, all transactions in connection therewith (including the financing thereofspouses or former spouses), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 3 contracts
Sources: Term Loan Agreement (Revlon Consumer Products Corp), Term Loan Agreement (Revlon Consumer Products Corp), Term Loan Agreement (Revlon Consumer Products Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate payments or consideration in excess of $15,000,000 unless:
(i) the terms of such the Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained at the time of the Affiliate Transaction in a transaction arm’s-length dealings with a Person who is not such an Affiliate and Affiliate; and
(ii) if such Affiliate Transaction involves aggregate consideration an amount in excess of $15.0 million35,000,000, the terms of such the Affiliate Transaction have been approved by are set forth in writing and a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority directors of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm Company disinterested with respect to such Affiliate TransactionTransaction have determined in good faith that the criteria set forth in Section 4.07(a)(i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors.
(b) The provisions of Section 412(a4.07(a) shall not apply toprohibit:
(i) any transaction between or among the Company or any of its Restricted Subsidiaries and any transaction between or among the Company or any of its Subsidiaries with respect to a Permitted Receivables Facility;
(ii) any Permitted Investment or any Restricted Payment Transaction,permitted to be made pursuant to Section 4.04;
(1iii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the entering intofunding of, maintaining or performance of any employment contractarrangements, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter stock options and stock ownership plans entered into in the ordinary course of business;
(iv) payroll, including vacationtravel, health, insurance, deferred compensation, severance, retirement, savings loans or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, advances to employees, officers or directors and employees in the ordinary course of businessbusiness of the Company and its Restricted Subsidiaries, and on customary terms;
(3v) any employment, consulting, service or termination agreement, or reasonable and customary indemnification agreement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business (and payments made pursuant thereto), and the payment of reasonable fees and expenses, and the provision of customary indemnities, to directors directors, officers, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacities as such;
(as determined in good faith by the Company or such Subsidiary), (4vi) any transaction with a Person (other than an officer Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or director a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(vii) any transaction with a joint venture partner in the ordinary course of business not involving more than $100,000 of the Company and its Restricted Subsidiaries and otherwise in any one casecompliance with the terms of this Indenture; provided that, in the reasonable, good faith determination of the members of the Board of Directors or (5) Management Advances and payments in respect thereof,
(iii) any transaction with senior management of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any such transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be have reasonably been obtained at the time of such transaction in a comparable transaction by the Company or such Restricted Subsidiary with a Person who is not an Affiliate unrelated Person;
(viii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company,;
(viix) any transaction transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness (including pursuant to joint venture agreements);
(x) transactions effected pursuant to any agreement as in effect on the Issue Date, so long as such transactions are (x) not material or approved by (y) described in the Offering Memorandum and any amendment, modification or replacement of any such agreement (so long as such amendments, modifications or replacements are not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date);
(xi) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a majority result of the Board of Directors, between such transactions; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of delivers to the Trustee a written opinion from the Company controlled by to the Company effect that such transaction is fair, from a joint venture or similar entity,
(vii) the executionfinancial standpoint, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 3 contracts
Sources: Indenture (NCR Corp), Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series guarantee with (which term, for purposes of related transactions (including this Section 4.11, shall include "for the purchase, sale, lease or exchange of any property or benefit of" where appropriate in the rendering of any servicecontext) with any Affiliate of the Company (each, an “"Affiliate Transaction”") unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company involving aggregate payments or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 25.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction involving aggregate payments or consideration in excess of $75.0 million, a resolution of the Board of Directors of the Company set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors of the Company.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of clause (a) of this Section 4.11:
(1) any employment, consulting or other compensation arrangement or agreement, employee or compensation benefit plan, officer or director compensation or indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, a Capital Interest in, or controls, such Person;
(4) [reserved];
(5) any issuance or sale of Qualified Capital Interests of the Company and the granting of registration and other customary rights in connection therewith;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and the definition of "Permitted Investments" and payments described in, but excluded from, the definitions of "Restricted Payment" and "Permitted Investments" and their component definitions;
(7) the grant of stock options, restricted stock, stock appreciation rights, phantom stock awards or similar rights or Capital Interests to directors, officers, employees and consultants that are approved by the Board of Directors of the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries under the terms of, any agreement or instrument as in effect on the Issue Date or any amendment thereto (so long as any such agreement or instrument together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement or instrument as in effect on the Issue Date) or any transaction contemplated thereby;
(9) transactions that are necessary or advisable in order to comply with Regulatory Requirements;
(10) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that could be would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(11) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business that are fair to the Company and its Restricted Subsidiaries in the good faith judgment of the Company, or are on terms at least as favorable as might reasonably have been obtained at the such time in a from an unaffiliated party;
(12) any transaction with a Qualified Securitization Entity that is not prohibited under this Indenture;
(13) payments of reasonable fees, expenses and indemnity to, and loans (or cancellation of loans) to, former, current and future employees, officers, directors, management personnel or consultants of the Company or any of its Subsidiaries and employment agreements, collective bargaining agreements, stock option plans, benefit plans, other similar arrangements and related trust arrangements with such Persons which, in each case, are approved by the Company in good faith;
(14) payments to and from, and transactions with, any Joint Venture in the ordinary course of business;
(15) transactions with Persons solely in their capacity as holders of a minority of any class of Debt or Capital Interests of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of such class of Debt or Capital Interests of the Company or such Restricted Subsidiary generally;
(16) any transaction with any Person who is not an Affiliate of the Company,Company immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(vi17) any transaction in the ordinary course of businesstransactions permitted by, or approved by a majority of the Board of Directors, and complying with Section 5.01 hereof;
(18) transactions between the Company or any of its Restricted Subsidiary Subsidiaries and any Affiliate Person, a director of which is also a director of the Company controlled by or any of its Subsidiaries, if such director abstains from voting as a director of the Company that is a joint venture or similar entity,
(vii) such Subsidiary, as the executioncase may be, delivery and performance of on any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any matter involving such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, Person; and
(viii19) the Transactionspledges of Capital Interests in, all transactions in connection therewith (including the financing thereof)or Debt of, and all fees and expenses paid or payable in connection with the TransactionsUnrestricted Subsidiaries.
Appears in 3 contracts
Sources: Indenture (Alliance Data Systems Corp), Indenture (Alliance Data Systems Corp), Indenture (Alliance Data Systems Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $20.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer officer, director or director consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity-related equity‑related interests or other securities, to any such management members, employees, officers officers, directors or directors in the ordinary course of businessconsultants, (34) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Borrower, such Subsidiary or such SubsidiaryParent), (45) any transaction with an officer or director of the Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (56) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entity,one or more Special Purpose Entities;
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateRestatement Effective Date (other than any Tax Sharing Agreement or Management Agreement referred to in subsection 7.6(b)(vii)), and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,Borrower;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity,;
(vii1) the execution, delivery and performance of any obligations under any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment payments to CDR CD&R or KKR or any Affiliate of CDR their respective Affiliates (x) for any management, consulting or advisory services, or in respect of fees of up to $2.0 million in any fiscal yearfinancing, and fees underwriting or placement services or other investment banking activities (if any), (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities;
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of CD&R, KKR and their respective Affiliates;
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower; and
(x) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Investor in connection therewith) so long as such securities are being offered generally to other investors on the same or more favorable terms.
Appears in 3 contracts
Sources: Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless such transaction is on terms:
(i1) the terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate,
(ii2) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million25,000,000,
(A) are set forth in writing, the terms of such Affiliate Transaction and
(B) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth Board of Directors having no personal stake in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or and,
(y3) that, in the event there are no Disinterested Directorssuch Affiliate Transaction involves an amount in excess of $75,000,000, a fairness opinion is provided have been determined by a nationally recognized appraisal appraisal, accounting or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 412(a4.07(a) shall will not apply toprohibit:
(i1) any Restricted Payment Transactionpermitted to be paid pursuant to Section 4.04,
(12) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors,
(3) the entering intogrant of stock options or similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors,
(4) loans or advances to employees in the ordinary course of business of the Company,
(5) the payment of reasonable fees and compensation to, maintaining or performance the provision of any employment contractemployee benefit arrangements and indemnity for the benefit of, collective bargaining agreementdirectors, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ,
(2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (46) any transaction with an officer between or director in the ordinary course among any of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements joint venture or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to similar entity which would constitute an Affiliate Transaction solely because the Company or the relevant a Restricted Subsidiary than those that could be obtained at the time owns an equity interest in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of businessor otherwise controls such Restricted Subsidiary, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii7) the execution, delivery and performance issuance or sale of any Tax Sharing Agreement Capital Stock (other than Disqualified Stock) of the Company,
(8) any agreement as in effect on the Closing Date and any Management Agreementsdescribed in the Private Placement Memorandum or in the Company's SEC filings as filed on or prior to the Closing Date, including (1) payment to CDR or any Affiliate renewals, extensions or amendments of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactionsany such agreement (so long as such renewals, and (2) payment to CDR extensions or any Affiliate of CDR of fees of up to $2.0 million amendments are not less favorable in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with material respect to the Company or its Restricted Subsidiaries) and the transactions evidenced thereby,
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, andin the reasonable determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party, or
(viii10) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsany transaction effected as part of a Qualified Receivables Transaction.
Appears in 3 contracts
Sources: Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Tire & Rubber Co /Oh/), Indenture (Goodyear Tire & Rubber Co /Oh/)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a6.10(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a6.10(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a6.10(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (including, without limitation, the Tax Sharing Agreement), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,, and
(vii) any issuance or sale of Capital Stock (other than Disqualified Stock) of the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Company or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect capital contribution to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsCompany.
Appears in 3 contracts
Sources: Third Supplemental Indenture (Sally Beauty Holdings, Inc.), Second Supplemental Indenture (Sally Beauty Holdings, Inc.), Supplemental Indenture (Sally Investment Holdings LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a Person who is not resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company,. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(2) transactions between or approved by a majority among any of the Board of Directors, between the Company or any and its Restricted Subsidiary and any Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company controlled by solely because the Company that is a joint venture or similar entity,owns an Equity Interest in such Person;
(vii4) transactions effected in accordance with the executionterms of agreements that are identified in Schedule I to this Indenture, delivery as such agreements are in effect on the date of this Indenture, and performance any amendment or replacement of any Tax Sharing Agreement of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any Management Agreementsmaterial respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including (1) payment to CDR reimbursement or any Affiliate advancement of CDR of a fee of up to $18.0 million plus out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in connection accordance with the TransactionsPartnership Agreement as in effect on the date of this Indenture and as it may be amended, and provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment; and
(29) payment in the case of contracts for the purchase or sale of Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to CDR those contained in similar contracts entered into by the Company or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection its Restricted Subsidiaries with any acquisition, merger, recapitalization third parties or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions Subsidiaries than those that would be available in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection a transaction with the Transactionsan unrelated third party.
Appears in 3 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectlyindirectly make any payment to, enter into or conduct sell, lease, transfer or otherwise dispose of any transaction of its properties or series of related transactions (including the purchaseassets to, sale, lease or exchange of purchase any property or assets from, or enter into, make, amend, renew or extend any transaction, contract, agreement, understanding, loan, advance or Guarantee with, or for the rendering benefit of, any of any service) with any Affiliate of the Company their Affiliates (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if unless:
(x1) such Affiliate Transaction is approved by on terms that are not less favorable, taken as a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directorswhole, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in material respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with an unrelated Person (as determined in good faith by the Company or a Person who is not an Affiliate direct or indirect parent of the Company,); and
(vi2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of the greater of (x) $5.0 million and (y) 3.0% of Consolidated Cash Flow for the Reference Period, a Board Resolution accompanied by an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (a)(1) above and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the Disinterested Members.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.05(a):
(1) (a) transactions between or among the Company and/or any of its Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and (b) any merger or consolidation of the Company and Cogent Holdco or any other direct or indirect parent of the Company (provided that such parent entity shall have no material liabilities and no material assets (other than Cash Equivalents and the Capital Stock of the Company) and such merger or consolidation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose);
(a) Restricted Payments that are permitted by this Indenture and (b) Permitted Investments;
(3) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an independent accounting, appraisal or investment banking firm of national standing (as determined in good faith by the Company or a direct or indirect parent of the Company) stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (1) of Section 4.05(a);
(4) payments, loans or advances to employees or consultants or guarantees in respect thereof (or cancellation of loans, advances or guarantees) for bona fide business purposes or in the ordinary course of business;
(5) any agreement or arrangement as in effect as of the Issue Date and as thereafter amended, supplemented or approved by a majority replaced (so long as such amendment, supplement or replacement is not more disadvantageous to the Holders in any material respect than the original agreement or arrangement as in effect on the Issue Date) or any transaction or payments contemplated thereby;
(6) (a) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors, between Directors or the senior management of the Company or any Restricted Subsidiary and any Affiliate a direct or indirect parent of the Company controlled by or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (b) transactions with Unrestricted Subsidiaries in the ordinary course of business;
(7) the sale or issuance of Equity Interests (other than Disqualified Stock) of the Company;
(8) any contribution to the capital of the Company that is a joint venture or similar entity,
(viiother than Disqualified Stock) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate investments by Cogent Holdco or a direct or indirect parent of CDR the Company in Equity Interests (other than Disqualified Stock) of a fee the Company (and payment of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all reasonable out-of-pocket expenses incurred by CDR Cogent Holdco or a direct or indirect parent of the Company in connection therewith);
(9) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest or otherwise participate in such Person;
(10) transactions between the Company or any of its Restricted Subsidiaries and any Person who is a director, or such Person has a director who is also a director of the Company or any direct or indirect parent of the Company; provided, however, that such director abstains from voting as a director of the Company or such direct or indirect parent of the Company, as the case may be, on any matter involving such other Person;
(11) pledges of Equity Interests of Unrestricted Subsidiaries;
(12) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally;
(13) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of their obligations under the terms of, any customary registration rights or shareholders’ agreement to which they are a party or become a party in connection with the future;
(14) any employment agreements entered into by the Company or any of its performance Restricted Subsidiaries in the ordinary course of management consultingbusiness and the payment of reasonable and customary fees and reimbursements paid to, monitoringand customary indemnity and similar arrangements provided on behalf of, financial advisory officers, directors, employees or other services with respect consultants of the Company or any Restricted Subsidiary or (to the extent relating to the business of the Company and its Subsidiaries) any other direct or indirect parent of the Company;
(15) any transaction effected as part of a Qualified Receivables Financing permitted hereunder;
(16) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company or of a Restricted Subsidiary of the Company, as appropriate, in good faith;
(17) (i) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Company or any of its Restricted Subsidiaries with current, former or future officers, directors, employees and consultants of the Company or any of its Restricted Subsidiaries (or of any direct or indirect parent of the Company to the extent such agreements or arrangements are in respect of services performed for the Company or any of its Restricted Subsidiaries) and the payment of compensation to officers, directors, employees and consultants of the Company or any of its Restricted Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) (or of any direct or indirect parent of the Company to the extent such agreements or arrangements are in respect of services performed for the Company or any of its Restricted Subsidiaries), in each case in the ordinary course of business; and (ii) any payment of compensation or other employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company (including amounts paid pursuant to any management equity plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, stock option or similar plans and any successor plan thereto and any supplemental executive retirement benefit plans or arrangements), in each case, in the ordinary course of business or as otherwise approved in good faith by the Board of Directors of the Company or a direct or indirect parent of the Company;
(18) investments by a direct or indirect parent of the Company in securities of the Company or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by a direct or indirect parent of the Company in connection therewith);
(19) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, in the ordinary course of business; and
(viiii) intellectual property licenses in the Transactions, all transactions ordinary course of business and (ii) intercompany intellectual property licenses and research and development agreements in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsordinary course of business.
Appears in 3 contracts
Sources: Indenture (Cogent Communications Holdings, Inc.), Indenture (Cogent Communications Holdings, Inc.), Indenture (Cogent Communications Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or Property, the rendering of any service) service or the payment of any management, advisory or similar fees, with any Affiliate (other than Parent, any Restricted Subsidiary or any Person that becomes a Restricted Subsidiary as a result of the Company (an “Affiliate Transaction”such transaction) unless (i) the such transaction is otherwise permitted under this Agreement and is on fair and reasonable terms of such Affiliate Transaction are not materially no less favorable to Parent and the Company or such Restricted SubsidiarySubsidiaries, taken as the case may bea whole, than those that could be obtained at the time in a comparable arm’s-length transaction with a Person who that is not such an Affiliate Affiliate. Notwithstanding the foregoing, Parent and the Restricted Subsidiaries may:
(a) enter into and consummate the transactions listed on Schedule 6.9(b);
(b) make Restricted Payments permitted pursuant to Section 6.6;
(c) make Investments (i) in Unrestricted Subsidiaries permitted by Section 6.7 and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 millionany Person to the extent permitted by Section 6.7(a), the terms of such Affiliate Transaction have been approved by (c), (d), (h), (v) or (cc) (provided, that any Investment in a majority of the Disinterested Directors. For purposes of Person permitted under Section 6.7 shall be permitted under this Section 412(a6.9(d) to the extent such Investment constitutes a transaction with an Affiliate solely because a Group Member owns any Capital Stock in, or controls such Person), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.;
(bd) The provisions enter into employment and severance arrangements with officers, directors and employees of Section 412(a) shall not apply to:
(i) any Parent and the Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securitiesSubsidiaries and, to employees, officers or directors in the ordinary course of business, (3) extent relating to services performed for Parent and the payment of reasonable fees to directors of the Company or any of its Restricted Subsidiaries (as determined in good faith by the Company or such Subsidiarysenior management of the relevant Person), pay director, officer and employee compensation (4including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and expense reimbursement arrangements; provided, that any transaction purchase of Capital Stock of Parent in connection with the foregoing shall be subject to Section 6.6;
(e) [reserved];
(f) make payments to or receive payments from, and enter into and consummate transactions with, joint ventures (to the extent any such joint venture is only an officer or director Affiliate as a result of Investments by Parent and the Restricted Subsidiaries in such joint venture) in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,consistent with past practice to the extent otherwise permitted hereunder;
(iiig) pay reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to holders of Capital Stock of Parent pursuant to any transaction stockholders’ agreement or registration and participation rights agreement as in effect on the Closing Date or entered into after the Closing Date in connection with any financing transaction, the Company, net proceeds of which are contributed to Parent;
(h) enter into transactions between Parent or any Restricted Subsidiary and any Person other than an Unrestricted Subsidiary which would constitute a transaction with an Affiliate solely because a director of such Person is also a director of Parent or any Receivables Entity,direct or indirect Subsidiary of Parent; provided, however, that such director abstains from voting as a director of Parent or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(ivi) any transaction arising out engage in the non-exclusive licensing of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction Intellectual Property in the ordinary course of business on terms not materially less favorable or consistent with past practice to permit the Company commercial exploitation of Intellectual Property between or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate among Affiliates of the Company,Parent;
(vij) any transaction in the ordinary course of business, between or approved by a majority of the Board of Directors, between the Company among Parent or any Restricted Subsidiary and any Person that is an Affiliate of the Company controlled by the Company that is Parent or any Restricted Subsidiary solely because Parent or a joint venture Restricted Subsidiary owns an equity interest in or similar entity,otherwise controls such Person;
(viik) the execution, delivery and performance [reserved];
(l) (i) investments by Affiliates in securities of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Parent or any Affiliate of CDR the Restricted Subsidiaries (and payment of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all reasonable out-of-pocket expenses incurred by CDR such Affiliates in connection therewith) so long as the investment is being offered by Parent or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities of Parent or any of the Restricted Subsidiaries contemplated by the foregoing subclause (i) or that were acquired from Persons other than Parent and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities;
(m) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described in connection with its performance Section 5.13; provided that such transaction was not entered into in contemplation of management consulting, monitoring, financial advisory or other services such Unrestricted Subsidiary becoming a Restricted Subsidiary; and
(n) enter into transactions with respect to which Parent or any of the Company and its Restricted Subsidiaries, and
(viii) as the Transactionscase may be, all transactions in connection therewith (including obtains a letter from an independent financial advisory, investment banking or appraisal firm stating that such transaction is fair to Parent or such Restricted Subsidiary from a financial point of view or meets the financing thereof), and all fees and expenses paid or payable in connection with requirements of the Transactionsfirst sentence of this Section 6.9.
Appears in 3 contracts
Sources: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Nutrition Ltd.), Credit Agreement (Herbalife Nutrition Ltd.)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, amend or conduct suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease property or exchange services) with or for the benefit of any property or the rendering of any service) with any Affiliate of the Company (each an “Affiliate Transaction”) or extend, renew, waive or otherwise amend or modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) the terms of such Affiliate Transaction are not materially less favorable to Parent or the Company relevant Restricted Subsidiary than those terms which could reasonably be obtained by Parent or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a comparable transaction with a Person who is not such made on an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionarm’s-length basis between unaffiliated parties.
(b) In any Affiliate Transaction (or any series of related Affiliate Transactions which are similar or part of a common plan) involving an amount or having a Fair Market Value in excess of $100,000,000, Parent must either (i) obtain a board resolution of a majority of the disinterested members of the Board of Directors of Parent certifying that such Affiliate Transaction complies with subsection (a) of this Section 4.14 or (ii) obtain a favorable written opinion as to the fairness of such transaction or transactions, as the case may be, from an Independent Financial Advisor.
(c) The foregoing provisions of Section 412(a) shall not apply to:
(i1) any Affiliate Transaction that is between or among Parent and/or any one or more of its Restricted Subsidiaries;
(2) any Restricted Payment Transaction,or Permitted Investment that is not prohibited by Section 4.10;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment reasonable fees, compensation, benefits and incentive arrangements paid or provided to, and indemnity provided on behalf of, officers, directors or employees or consultants of reasonable fees to directors of the Company Parent or any of its Subsidiaries (Restricted Subsidiary as determined in good faith by the Company Parent’s Board of Directors or such Subsidiary), senior management;
(4) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction with an officer contemplated thereby (including pursuant to any amendment thereto) or director in the ordinary course of business not involving more than $100,000 in any one casereplacement agreement thereto so long as any such amendment or replacement agreement is not materially more disadvantageous to the Holders, or (5) Management Advances and payments taken as a whole, than the original agreement as in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence effect on the Issue Date, and any payments made pursuant thereto,;
(v5) any transaction in the ordinary course transactions effected as part of business on terms not materially less favorable a Qualified Receivables Transaction;
(6) sales or issuances of Equity Interests (other than Disqualified Stock) of Parent to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction Affiliates of Parent;
(7) transactions with a Person who that is not an Affiliate of the Company,Parent solely because Parent or a Restricted Subsidiary owns an Equity Interest in or controls such Person;
(vi) 8) any transaction in undertaken pursuant to the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Constar Agreements, including (1) payment to CDR any amendment thereto or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction replacement thereof so long as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR amendment or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect replacement agreement is not materially more disadvantageous to the Company and its Restricted SubsidiariesHolders, taken as a whole, than the original Constar Agreement so amended or replaced; and
(viii9) the Transactions, all transactions in connection therewith (including non-recourse accommodation pledge of equity of any Unrestricted Subsidiary to support the financing thereof), and all fees and expenses paid or payable in connection with Indebtedness of such Unrestricted Subsidiary to the Transactionsextent such pledge is otherwise permitted under this Indenture.
Appears in 3 contracts
Sources: Indenture (Crown Holdings Inc), Indenture (Crown Holdings Inc), Indenture (Crown Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including Guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless ), unless:
(i) the terms of such Affiliate Transaction is on terms that are not materially no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with a Person who that is not such an Affiliate and of the Company; and
(ii) if such with respect to any Affiliate Transaction involves or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have or series of related Affiliate Transactions has been approved by a majority of the Disinterested Directors. For purposes disinterested members of this Section 412(a), the Board of Directors of the Company; and
(iii) with respect to any Affiliate Transaction shall be deemed or series of related Affiliate Transactions involving aggregate consideration in excess of $30.0 million, the Board of Directors of the Company has received an opinion as to have satisfied the requirements set forth in this Section 412(a) if (x) fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction is approved or series of related Affiliate Transactions from a financial point of view issued by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directorsan accounting, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionof national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 412(a) shall not apply tothe prior paragraph:
(i) any Restricted Payment Transaction,
(1) the entering intoemployment, maintaining consulting or performance of any employment contract, collective bargaining agreement, benefit plan, program similar agreement or arrangement, related trust agreement stock option or any other similar arrangement for or with any employeestock ownership plan, employee benefit plan, officer or director heretofore indemnification agreement, restricted stock agreement, severance agreement or hereafter other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments, including vacationawards, healthgrants or issuances of securities pursuant thereto;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries and the issuance of Guarantees for the benefit of the Company or a Restricted Subsidiary;
(iii) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, insurancedirectly or through a Subsidiary, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligationsan Equity Interest in, or any issuancecontrols, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, such Person;
(3iv) the payment of reasonable fees to and expenses and compensation paid to, and indemnity or insurance provided on behalf of, officers, directors or employees of the Company or any of its Restricted Subsidiaries;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Company to, or receipt of a capital contribution from, Affiliates of the Company;
(vi) Restricted Payments that do not violate Section 4.07;
(vii) loans or advances to employees in the ordinary course of business or consistent with past practice;
(viii) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business;
(ix) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any written agreement to which the Company or any of its Restricted Subsidiaries was a party on the Issue Date, as these agreements may be amended, modified or supplemented from time to time; provided, however, that any future amendment, modification or supplement entered into after the Issue Date shall be permitted to the extent that its terms do not materially and adversely affect the rights of any Holders of the Notes (as determined in good faith by the Board of Directors of the Company) as compared to the terms of the agreements in effect on the Issue Date;
(x) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(xi) transactions between the Company or any Restricted Subsidiary and any Person, a director of which is also a director of the Company or any direct or indirect parent company of the Company and such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Restricted Subsidiary; provided, however, that such director abstains from voting as director of the Company or such Subsidiary)direct or indirect parent company of the Company, as the case may be, on any matter involving such other Person; and
(4xii) any transaction transactions with an officer customers, clients, suppliers, or director purchasers or sellers of goods or services, in each case in the ordinary course of business not involving more than $100,000 and otherwise in any one casecompliance with the terms of this Indenture, provided that in the reasonable determination of the Board of Directors of the Company or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the senior management of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business such transactions are on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained at the time in a comparable transaction with at such time on an arm’s-length basis from a Person who that is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 3 contracts
Sources: Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp)
Limitation on Transactions with Affiliates. (a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) unless such transaction is on terms:
(i1) the terms of such Affiliate Transaction that are not materially no less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm’s-length dealings with a Person who is not such an Affiliate and Affiliate,
(ii2) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million25,000,000,
(A) are set forth in writing, the terms of such Affiliate Transaction and
(B) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a)the Board of Directors having no personal stake in such Affiliate Transaction; and
(3) that, any Affiliate Transaction shall be deemed to have satisfied in the requirements set forth in this Section 412(a) if (x) event such Affiliate Transaction is approved by a majority involves an amount in excess of the Disinterested Directors or (y) in the event there are no Disinterested Directors$75,000,000, a fairness opinion is provided have been determined by a nationally recognized appraisal appraisal, accounting or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to the Borrower and its Restricted Subsidiaries.
(b) The provisions of Section 412(a6.05(a) shall will not apply toprohibit:
(i1) any Restricted Payment Transaction,permitted to be paid pursuant to Section 6.02;
(12) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, incentive compensation plans, stock options and stock ownership plans approved by the Board of Directors;
(3) the entering intogrant of stock options or similar rights to employees and directors of the Borrower pursuant to plans approved by the Board of Directors;
(4) loans or advances to employees in the ordinary course of business of the Borrower;
(5) the payment of reasonable fees and compensation to, maintaining or performance the provision of any employment contractemployee benefit arrangements and indemnity for the benefit of, collective bargaining agreementdirectors, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into officers and employees of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of the Borrower, including vacationany Restricted Subsidiary or any joint venture or similar entity which would constitute an Affiliate Transaction solely because the Borrower or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, health, insurance, deferred compensation, severance, retirement, savings joint venture or other similar plans, programs or arrangements, entity;
(27) the payment issuance or sale of compensation, performance any Capital Stock (other than Disqualified Stock) of indemnification or contribution obligationsthe Borrower;
(8) any agreement as in effect on the Restatement Date described in the Disclosure Documents, or any issuancerenewals, grant extensions or award amendments of stockany such agreement (so long as such renewals, optionsextensions or amendments are not less favorable in any material respect to the Borrower or its Restricted Subsidiaries) and the transactions evidenced thereby;
(9) transactions with customers, other equity-related interests clients, suppliers or other securities, to employees, officers purchasers or directors sellers of goods or services in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director each case in the ordinary course of business not involving more than $100,000 and otherwise in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction compliance with the Companyterms of this Agreement which are fair to the Borrower or its Restricted Subsidiaries, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority reasonable determination of the Board of DirectorsDirectors or the senior management thereof, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party; or
(vii10) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR transaction effected as part of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsQualified Receivables Transaction.
Appears in 3 contracts
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) such Affiliate Transaction is entered into in good faith and the terms of such Affiliate Transaction are not materially less favorable are, taken as a whole, fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 25.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness the Company or such Restricted Subsidiary receives an opinion is provided by in customary form from a nationally recognized appraisal or investment banking firm with respect to the effect that such Affiliate TransactionTransaction is fair to the Company or such Restricted Subsidiary from a financial point of view.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), or (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with with, including an Investment in, the Company, Company or any Restricted Subsidiary or any Receivables Entity,Subsidiary;
(iv) any transaction arising out of and any payments made pursuant to agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement referred to in Section 412(b)(vi)), including, without limitation, the Transaction Documents, and any payments made pursuant thereto,as the same may be amended, modified, supplemented or replaced from time to time so long as such amendment, modification, supplement or replacement is not materially more disadvantageous to the Holders than the original agreement or instrument as in effect on the Issue Date;
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,;
(viivi) the execution, delivery and performance of any Tax Sharing Agreement Agreement;
(vii) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company (and the granting of registration rights or other customary rights in connection therewith) or capital contribution to the Company;
(viii) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, where such Affiliates hold less Indebtedness or Equity Interests than non-Affiliates and such Affiliates receive the same consideration as non-Affiliates in such transactions;
(ix) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(x) transactions between the Company or any Restricted Subsidiary and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses Special Purpose Subsidiary in connection with a Financing Disposition or a Special Purpose Financing, provided that such transactions are not otherwise prohibited by this Indenture;
(xi) transactions exclusively between or among the TransactionsCompany and any of its Restricted Subsidiaries, and provided such transactions are not otherwise prohibited by this Indenture;
(2xii) payment transactions involving aggregate consideration not to CDR exceed $1.0 million;
(xiii) payments by the Company or any Affiliate Restricted Subsidiary to any Permitted Holder or any of CDR its affiliates for any financial advisory, financing, underwriting or placement services or in respect of fees of up to $2.0 million in any fiscal yearother investment banking activities, and fees including in connection with any acquisitionacquisition or divestitures, mergerwhich payments are approved by a majority of the members of the Board of Directors; and
(xiv) transactions with customers, recapitalization clients, suppliers or similar transaction purchasers or sellers of goods or services, in each case in the ordinary course of business or that are on terms at least as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect favorable to the Company and its Restricted SubsidiariesSubsidiaries as might reasonably have been obtained at such time from an unaffiliated party, and
(viii) or that are considered fair to the Transactions, all transactions Company and its Restricted Subsidiaries in connection therewith (including the financing thereof), and all fees and expenses paid view of a majority of the members of the Board of Directors or payable in connection with the Transactionssenior management of the Company.
Appears in 3 contracts
Sources: Indenture (Adesa California, LLC), Indenture (Adesa California, LLC), Indenture (Adesa California, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $20.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer officer, director or director consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such management members, employees, officers officers, directors or directors in the ordinary course of businessconsultants, (34) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Borrower, such Subsidiary or such SubsidiaryParent), (45) any transaction with an officer or director of the Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (56) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entity,one or more Special Purpose Entities;
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateRestatement Effective Date (other than any Tax Sharing Agreement or Management Agreement referred to in subsection 7.6(b)(vii)), and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,Borrower;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity,;
(vii) (1) the execution, delivery and performance of any obligations under any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment payments to CDR CD&R or KKR or any Affiliate of CDR their respective Affiliates (x) for any management, consulting or advisory services, or in respect of fees of up to $2.0 million in any fiscal yearfinancing, and fees underwriting or placement services or other investment banking activities (if any), (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities;
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of CD&R, KKR and their respective Affiliates;
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower; and
(x) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Investor in connection therewith) so long as such securities are being offered generally to other investors on the same or more favorable terms.
Appears in 2 contracts
Sources: Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company Company, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Transaction Agreement referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Transaction Agreements, including and (12) payment payments to CDR CD&R, Tyco or any Affiliate of CDR their respective Affiliates (w) of a fee fees of up to $18.0 30.0 million in the aggregate, plus out-of-pocket expenses expenses, in connection with the Transactions, and (2x) payment to CDR for any management consulting, financial advisory, financing, underwriting or any Affiliate placement services or in respect of CDR of fees other investment banking activities, of up to $2.0 7.5 million in any fiscal yearyear (or such other amount as may be approved by a majority of the Disinterested Directors), and fees (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Transaction Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or any capital contribution to the Company, and
(x) (1) any investment by any CD&R Investor in securities of the Company or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all CD&R Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities and (2) any investment by any member of the Tyco Group in securities of the Company or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all members of the Tyco Group constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 2 contracts
Sources: Indenture (Unistrut International Holdings, LLC), Indenture (Unistrut International Holdings, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly enter into, renew or indirectly, enter into or conduct extend any transaction or series of related transactions (arrangement, including the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) , with any Affiliate of the Company or any Restricted Subsidiary (an a “Affiliate Related Party Transaction”) unless (i) the ), except upon fair and reasonable terms of such Affiliate Transaction are not materially no less favorable favorable, taken as a whole, to the Company or such the Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained at the time in a comparable arm’s-length transaction with a Person who that is not such an Affiliate and of the Company.
(iib) if such Affiliate Any Related Party Transaction involves or series of Related Party Transactions with an aggregate consideration value in excess of $15.0 million, the terms of such Affiliate Transaction have been 50,000,000 must first be approved by a majority of the Disinterested Directors. For purposes Board of this Section 412(a)Directors of the Company who are disinterested in the subject matter of the transaction pursuant to a Board Resolution, any Affiliate Transaction shall unless there are no members of the Board of Directors of the Company that are disinterested in the subject matter of the transaction, in which case such transaction must be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Board of Directors or (y) in of the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionCompany.
(bc) The provisions of Section 412(a) shall foregoing paragraphs do not apply to:
(i) any transaction between the Company and any of its Restricted Payment Transaction,Subsidiaries or between Restricted Subsidiaries of the Company;
(1ii) the entering intopayment of reasonable and customary regular fees to, maintaining and the reimbursement of expenses of, directors of the Company who are not employees of the Company;
(iii) any Restricted Payments of a type permitted under Section 4.07(a);
(iv) transactions or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with payments pursuant to any employee, officer or director heretofore compensation, benefit plans, collective bargaining agreement or hereafter entered into in the ordinary course of business, other similar arrangements (including vacation, health, insurance, deferred compensation, retirement, savings, severance, retirement, savings change of control payments and incentive arrangements or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors entered into in the ordinary course of business;
(v) transactions entered into as part of a Permitted Receivables Financing;
(vi) transactions pursuant to any contract or agreement in effect on the date of this Indenture, as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a whole, are not materially less favorable to the Company and its Restricted Subsidiaries than those in effect on the date of this Indenture;
(3vii) the payment of reasonable fees to directors indemnification or similar arrangements (including director and officer liability insurance) for officers, directors, employees or agents of the Company or any of its Restricted Subsidiaries pursuant to charter, bylaw, contractual or statutory provisions;
(as determined in good faith viii) any transactions between the Company or any of its Restricted Subsidiaries and any Affiliate of the Company the Equity Interests of which Affiliate are owned solely by the Company or such Subsidiary)any of its Restricted Subsidiaries, on the one hand, and by persons who are not Affiliates of the Company or Restricted Subsidiaries, on the other hand;
(4ix) any transaction with an officer loans and advances to directors, employees or director officers made in the ordinary course of business in compliance with applicable laws, provided that such loans and advances do not involving more than exceed $100,000 25,000,000 in the aggregate at any one case, or (5) Management Advances and payments in respect thereof,time outstanding;
(iiix) any transaction transactions with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out Persons who are Affiliates of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in solely as a transaction with a Person who is not an Affiliate result of the Company,’s or a Restricted Subsidiary’s Investment in such Person; and
(vixi) any transaction in transactions as to which the ordinary course of business, or approved by Company has obtained a majority favorable written opinion from a nationally recognized investment banking firm as to the fairness of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSubsidiaries from a financial point of view.
Appears in 2 contracts
Sources: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Material Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $20.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer officer, director or director consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Borrower, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries, and/or one or any Receivables Entitymore Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date (other than any Tax Sharing Agreement or Management Agreement referred to in subsection 7.6(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyBorrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment payments to CDR CD&R or KKR or any Affiliate of CDR their respective Affiliates (x) for any management consulting, financial advisory, financing, underwriting or placement services or in respect of fees of up to $2.0 million in any fiscal year, and fees other investment banking activities or in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (y) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower, and
(x) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 2 contracts
Sources: Credit Agreement (Trans-Porte, Inc.), Credit Agreement (Great North Imports, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectlyand each Restricted Entity shall not, enter into or conduct permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless involving (itogether with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless:
(1) the terms of such the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Subsidiary, as the case may be, Entity than those that could be obtained at the time of the Affiliate Transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate; and
(ii2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves aggregate consideration an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have been approved by a majority of determined in good faith that the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements criteria set forth in this Section 412(aclause (1) if (x) such Affiliate Transaction is are satisfied and have approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such relevant Affiliate Transaction.
(b) The provisions of Section 412(athe preceding paragraph (a) shall not apply toprohibit:
(i) any Restricted Payment Transaction,
(1) the entering intoRestricted Payments, maintaining or performance of any employment contractin each case permitted to be made pursuant to Section 4.08, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, and Permitted Investments;
(2) the payment any issuance of compensation, performance of indemnification or contribution obligationssecurities, or any issuanceother payments, grant awards or award grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, Directors;
(3) the payment of reasonable fees loans or advances to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director employees in the ordinary course of business not involving more than $100,000 in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one casetime;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities;
(5) Management Advances transactions between or among the Company and payments in respect thereof,the Restricted Entities;
(iii6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights;
(7) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments agreement as in existence effect on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time (so long as any amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and any payments made pursuant thereto,the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7);
(v) any transaction 8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business on and otherwise in compliance with the terms not materially less favorable of this Indenture which are fair to the Company or and the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction Entities, in the ordinary course of business, or approved by a majority reasonable determination of the Board of DirectorsDirectors or the senior management of the Company, between or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the Company or any Restricted Subsidiary and any Affiliate entering into agreements with equity holders of the Company controlled by including, without limitation, the Company that is a joint venture or similar entity,
(vii) the execution, delivery entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements;
(10) Affiliate Transactions with a Person solely in its capacity as a holder of debt or equity securities where such Person is treated no more favorably in such transaction than any Tax Sharing Agreement and any Management Agreementsother security holders who are not Affiliates; and
(11) Transactions pursuant to, including (1) payment to CDR contemplated by or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with (i) the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Coop Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viiiii) the TransactionsMCSA, all transactions in connection therewith and/or (including iii) the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSecurities Purchase Agreement.
Appears in 2 contracts
Sources: Indenture (Harbinger Capital Partners Master Fund I, Ltd.), Indenture (Harbinger Capital Partners Master Fund I, Ltd.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, (i) sell, lease, transfer or otherwise dispose of any of its properties, assets or securities to, (ii) purchase or lease any property, assets or securities from, (iii) make any Investment in, or (iv) enter into or conduct amend any transaction contract or agreement with or for the benefit of, either (A) an Affiliate of any of them, (B) any Person, or Person who is a member of a group (as such term is used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) that, directly or indirectly, is the beneficial holder of 10% or more of any class of equity securities of the Company, (C) any Person who is an Affiliate of any such holder, or (D) any officers, directors, or employees of any of the above (each case under (A), (B), (C) and (D), an "Affiliate Transaction"), in one or a series of related transactions (including to either party), except for transactions evidenced by an Officers' Certificate addressed and delivered to the purchaseTrustee stating that such Affiliate Transaction is made in good faith, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction which are not materially less favorable fair and reasonable to the Company or and such Restricted Subsidiary, as the case may be, than those or, with respect to Affiliate Transactions between the Company and any of its Subsidiaries, to the Company; provided that could be obtained at (v) transactions between or among the time in a transaction with a Person who is Company and any of its Restricted Subsidiaries shall not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if constitute Affiliate Transactions, (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(iw) any Restricted Payment Transaction,
(1) the entering intoreasonable employment, maintaining or performance of any employment contract, collective bargaining agreementcompensation, benefit plan, program or arrangement, related trust indemnification agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of by the Company or any of its Restricted Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business shall not involving more than $100,000 be deemed to constitute Affiliate Transactions, (x) Restricted Payments that are permitted by the provisions of this Indenture described in any one caseSection 4.08 shall not be deemed to constitute Affiliate Transactions, or (5) Management Advances and payments in respect thereof,
(iiiy) any transaction sale of Capital Stock (other than Disqualified Stock) of the Company shall not be deemed to constitute Affiliate Transactions, and (z) with respect to any Affiliate Transaction or series of related transactions with an aggregate value (to either party) in excess of $2 million (excluding issuances of Qualified Stock of the Company, Company and any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out forgiveness of agreements or instruments in existence Indebtedness to an Affiliate existing on the Issue Date), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable Company must, prior to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in consummation thereof, obtain a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction written favorable opinion as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiariesfairness of such transaction to itself from a financial point of view from an independent accounting, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid appraisal or payable in connection with the Transactionsinvestment banking firm of national reputation.
Appears in 2 contracts
Sources: First Supplemental Indenture (Giant Industries Inc), First Supplemental Indenture (Giant Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, without limitation, the sale, transfer, disposition, purchase, saleexchange or lease of assets, lease or exchange of any property or services) with, or for the rendering benefit of, any of any serviceits Affiliates (other than Restricted Subsidiaries), except (a) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that which could be have been obtained at the time in a comparable transaction at such time from Persons who are not Affiliates of the Company, (b) with respect to a Person who is not transaction or series of related transactions involving aggregate payments or value equal to or greater than $2,000,000 the Company shall have delivered an Officer’s Certificate to the Trustee certifying that such an Affiliate transaction or transactions comply with the preceding clause (a), and (iic) if with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $5,000,000, such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction transaction or transactions shall have been approved by a majority of the Disinterested DirectorsMembers of the Board of Directors of the Company. For purposes of this Section 412(a)Notwithstanding the foregoing, any Affiliate Transaction shall be deemed to have satisfied the requirements restrictions set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) 10.11 shall not apply to:
to (i) transactions with or among the Company and the Restricted Subsidiaries of the Company, (ii) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter Subsidiary entered into in the ordinary course of business, including vacation(iii) any dividends, health, insurance, deferred compensation, severance, retirement, savings payments or other similar plans, programs or arrangementsinvestments made in compliance with Section 10.09, (2iv) loans and advances to officers, directors and employees of the payment of compensation, performance of indemnification or contribution obligations, Company or any issuanceRestricted Subsidiary for travel, grant or award of stockentertainment, optionsmoving and other relocation expenses, other equity-related interests or other securities, to employees, officers or directors in each case made in the ordinary course of business, (3v) the payment incurrence of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary)intercompany Indebtedness which constitutes Permitted Indebtedness, (4vi) any transaction with an officer transactions pursuant to agreements in effect on the Issue Date, (vii) the purchase of equipment for its Fair Market Value from Terex Corporation or director its Affiliates in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances of each of Terex Corporation and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(ivviii) any transaction arising out sale, conveyance or other transfer of agreements assets customarily transferred in a Securitization Transaction to a Special Purpose Vehicle, (ix) transactions with customers, clients, suppliers, joint venture partners, joint ventures, including their members or instruments partners, or purchasers or sellers of goods or services, in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction each case in the ordinary course of business on business, including pursuant to joint venture agreements, and otherwise in compliance with the terms not of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), materially no less favorable to the Company or the relevant applicable Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or that Restricted Subsidiary with a Person who is not an Affiliate unrelated person or entity, in the good faith determination of the Company,
(vi) any transaction in the ordinary course ’s Board of businessDirectors or its senior management, or approved by a majority of the Board of Directorsare on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, between the Company and (x) transactions described in, or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
permitted by, clauses (vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2x) payment to CDR or any Affiliate of CDR the final paragraph of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSection 10.09.
Appears in 2 contracts
Sources: Indenture (United Rentals Inc /De), Indenture (United Rentals Gulf Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a Person who is not resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company,. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(2) transactions between or approved by a majority among any of the Board of Directors, between the Company or any and its Restricted Subsidiary and any Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company controlled by solely because the Company that is a joint venture or similar entity,owns an Equity Interest in such Person;
(vii4) transactions effected in accordance with the executionterms of agreements that are identified in Schedule I to this Indenture, delivery in each case as such agreements are in effect on the date of this Indenture, and performance any amendment or replacement of any Tax Sharing Agreement of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any Management Agreementsmaterial respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including (1) payment to CDR reimbursement or any Affiliate advancement of CDR of a fee of up to $18.0 million plus out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in connection accordance with the TransactionsPartnership Agreement as in effect on the date of this Indenture and as it may be amended, and (2) payment modified or supplemented from time to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal yeartime, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in that any such Management Agreementamendment, plus all out-of-pocket modification or supplement relating to reimbursement of the General Partner for expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect is not less favorable to the Company and its Restricted SubsidiariesSubsidiaries in any material respect than the relevant provision of the Partnership Agreement prior to such amendment, modification or supplement; and
(viii9) in the Transactionscase of contracts for the purchase or sale of refined petroleum products or other Hydrocarbons or activities or services reasonably related thereto, all transactions or other operational contracts, any such contracts that are (a) entered into in connection therewith the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with third parties or (including b) otherwise on terms not materially less favorable to the financing thereof), Company and all fees and expenses paid or payable its Restricted Subsidiaries than those that would be available in connection a transaction with the Transactionsan unrelated third party.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate payments or consideration in excess of $10,000,000 unless:
(i) the terms of such the Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained at the time of the Affiliate Transaction in a transaction arm’s-length dealings with a Person who is not such an Affiliate and Affiliate; and
(ii) if such Affiliate Transaction involves aggregate consideration an amount in excess of $15.0 million25,000,000, the terms of such the Affiliate Transaction have been approved by are set forth in writing and a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority directors of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm Company disinterested with respect to such Affiliate TransactionTransaction have determined in good faith that the criteria set forth in Section 4.07(a)(i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors.
(b) The provisions of Section 412(a4.07(a) shall not apply toprohibit:
(i) any transaction between or among the Company or any of its Restricted Subsidiaries (other than Securitization Vehicles);
(ii) any Permitted Investment or any Restricted Payment Transaction,permitted to be made pursuant to Section 4.04;
(1iii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the entering intofunding of, maintaining or performance of any employment contractarrangements, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter stock options and stock ownership plans entered into in the ordinary course of business;
(iv) payroll, including vacationtravel, health, insurance, deferred compensation, severance, retirement, savings loans or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, advances to employees, officers or directors and employees in the ordinary course of businessbusiness of the Company and its Restricted Subsidiaries, and on customary terms;
(3v) any employment, consulting, service or termination agreement, or reasonable and customary indemnification agreement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business (and payments made pursuant thereto), and the payment of reasonable fees and expenses, and the provision of customary indemnities, to directors directors, officers, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacities as such;
(as determined in good faith by the Company or such Subsidiary), (4vi) any transaction with a Person (other than an officer Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or director a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(vii) any transaction with a joint venture partner in the ordinary course of business not involving more than $100,000 of the Company and its Restricted Subsidiaries and otherwise in any one casecompliance with the terms of this Indenture; provided that, in the reasonable, good faith determination of the members of the Board of Directors or (5) Management Advances and payments in respect thereof,
(iii) any transaction with senior management of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any such transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be have reasonably been obtained at the time of such transaction in a comparable transaction by the Company or such Restricted Subsidiary with a Person who is not an Affiliate unrelated Person;
(viii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company,;
(viix) any transaction transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness (including pursuant to joint venture agreements);
(x) transactions effected pursuant to any agreement in as in effect on the Issue Date and described in this Offering Memorandum and any amendment, modification or approved by replacement of any such agreement (so long as such amendments, modifications or replacements are not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date);
(xi) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a majority result of the Board of Directors, between such transactions; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of delivers to the Company controlled by Trustee a written opinion from an Independent Qualified Party to the Company effect that such transaction is fair, from a joint venture or similar entity,
(vii) the executionfinancial standpoint, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent Borrower (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a)8.6, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) 8.6 if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a8.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Parent Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Parent Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Parent Borrower, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Parent Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyParent Borrower, any one or more Restricted Subsidiary Subsidiaries or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date (other than any Tax Sharing Agreement or Management Agreement referred to in Section 8.6(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Parent Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Parent Borrower, or are not materially less favorable to the Company Parent Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyParent Borrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Parent Borrower or any Restricted Subsidiary and any Affiliate of the Company Parent Borrower controlled by the Company Parent Borrower that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR CDR, Carlyle or ML or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR their respective Affiliates of fees of up to $2.0 7.5 million in the aggregate in any fiscal year, and fees in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR CDR, Carlyle or ML or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company Parent Borrower and its Restricted Subsidiaries, and,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent Borrower or capital contribution to the Parent Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Hertz Global Holdings Inc), Credit Agreement (Hertz Global Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (arrangement including the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) service with any Affiliate of the Company or of any Restricted Subsidiary involving aggregate payments or consideration in excess of $5.0 million (an each such person, a “Affiliate Related Person” and, each such transaction, a “Related Party Transaction”) unless (i) the ), except upon fair and reasonable terms of such Affiliate Transaction are not materially no less favorable to the Company or such the Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained at the time in a comparable arm’s-length transaction with a Person who that is not such an Affiliate and of the Company.
(iib) if such Affiliate Any Related Party Transaction involves or series of Related Party Transactions with an aggregate consideration value in excess of $15.0 million, the terms of such Affiliate Transaction have been 35.0 million must first be approved by a majority of the Disinterested Directors. For purposes Board of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied Directors who are disinterested in the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority subject matter of the Disinterested Directors or (y) in transaction pursuant to a Board Resolution delivered to the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactiontrustee.
(bc) The provisions of Section 412(a) shall foregoing paragraphs do not apply toto any of the following transactions:
(i1) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the Company;
(2) the payment of reasonable and customary fees to directors of the Company who are not employees of the Company;
(3) any Restricted Payment Transaction,permitted to be paid pursuant to Section 4.07 or any Permitted Investment;
(1a) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2b) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3c) the payment of reasonable fees to directors of the Company or any of its Restricted Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5d) Management Advances and payments in respect thereof,
(iii) any transaction with to the Companyextent permitted by law, loans or advances made to directors, officers or employees of the Company or any Restricted Subsidiary (x) in respect of travel, entertainment or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction moving-related expenses Incurred in the ordinary course of business, or approved by a majority (y) in the ordinary course of business and (in the Board case of Directors, between this clause (y)) not exceeding $10.0 million in the Company or aggregate outstanding at any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,time;
(vii5) transactions pursuant to any contract, agreement or instrument in effect on the executiondate of this Indenture, delivery and performance of any Tax Sharing Agreement and any Management Agreementsas amended, including (1) payment modified or replaced from time to CDR time so long as the amended, modified or any Affiliate of CDR of new agreements, taken as a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactionswhole, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect are no less favorable to the Company and its Restricted Subsidiaries than those in effect on the date of this Indenture;
(6) transactions with Persons solely in their capacity as holders of a minority of any class of Debt or Capital Stock of the Company or any of its Restricted Subsidiaries, andwhere such Persons are treated no more favorably than holders of such class of Debt or Capital Stock of the Company or such Restricted Subsidiary generally;
(viii7) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services in the ordinary course of business and consistent with past business practices and approved by the Board of Directors;
(8) sales of Capital Stock (other than Disqualified Stock) of the Company or any capital contribution to the Company;
(9) any transaction with any Person who is not a Related Party immediately before the consummation of such transaction that becomes a Related Party as a result of such transaction;
(10) transactions in which the Company obtains a favorable written opinion from a nationally recognized investment banking firm as to the fairness of the transaction to the Company and its Restricted Subsidiaries from a financial point of view;
(11) the Transactions, all transactions in connection therewith granting or performance of registration rights under a customary registration rights agreement; or
(including the financing thereof), and all fees and expenses paid or payable in connection 12) any transaction with the Transactionsa Securitization Vehicle as part of a Securitization Financing permitted under this Indenture.
Appears in 2 contracts
Sources: Senior Notes Indenture (Black Knight Financial Services, Inc.), Senior Notes Indenture (Lender Processing Services, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, without limitation, the sale, transfer, disposition, purchase, saleexchange or lease of assets, lease or exchange of any property or services) with, or for the rendering benefit of, any of any serviceits Affiliates (other than Restricted Subsidiaries), except (a) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that which could be have been obtained at the time in a comparable transaction or series of related transactions from Persons who are not Affiliates of the Company, (b) with respect to a Person who is not transaction or series of related transactions involving aggregate payments or value equal to or greater than $2,000,000 the Company shall have delivered an Officer's Certificate to the Trustee certifying that such an Affiliate transaction or transactions comply with the preceding clause (a), and (iic) if with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $5,000,000, such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction transaction or transactions shall have been approved by a majority of the Disinterested Directorsdisinterested members of the Board of Directors of the Company. For purposes of this Section 412(a)Notwithstanding the foregoing, any Affiliate Transaction shall be deemed to have satisfied the requirements restrictions set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) covenant shall not apply to:
to (i) transactions with or among the Company and the Restricted Subsidiaries, (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter Subsidiary entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements(iii) any dividends made in compliance with Section 10.9, (2iv) loans and advances to officers, directors and employees of the payment of compensation, performance of indemnification or contribution obligations, Company or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors Restricted Subsidiary made in the ordinary course of business, (3v) the payment incurrence of reasonable fees intercompany Indebtedness which constitutes Permitted Indebtedness and (vi) transactions pursuant to directors of the Company or any of its Subsidiaries (as determined agreements in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence effect on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Indenture (Group Maintenance America Corp), Indenture (Group Maintenance America Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate consideration in excess of the greater of $20.0 million and 0.50% of Consolidated Tangible Assets unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of the greater of $15.0 million50.0 million and 1.25% of Consolidated Tangible Assets, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to the Company or any Restricted Subsidiary heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity-equity related interests or other securities, to any such management members, employees, officers officers, directors or directors in the ordinary course of businessconsultants, (34) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), or (45) any transaction with an officer or director of the Company or any of its Subsidiaries in the ordinary course of business not involving more than $100,000 in any one casebusiness, or (56) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, or any one or more Receivables EntitySubsidiaries,
(iv) (A) any transaction arising out agreement or arrangement as in effect as of the Issue Date (or transactions pursuant thereto), (B) any other agreements or instruments arrangements (or transactions pursuant thereto) as in existence effect on the Escrow Release Date (including the Transaction Documents) or pursuant to or in connection with the Transaction Documents (including the Transactions) or (C) any amendment, modification or supplement to the agreements referenced in clauses (A) or (B) above or any replacement thereof, as long as the terms of such agreement or arrangement, as so amended, modified, supplemented or replaced are not materially more disadvantageous to the Holders when taken as a whole when compared to the applicable agreements or arrangements as in effect on the Issue DateDate or as generally described in the Offering Memorandum, and any payments made pursuant thereto,as applicable, as determined in good faith by the Company;
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,;
(vii) the execution, delivery Transactions and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), to the extent consistent with the descriptions thereof in the Offering Memorandum, and all fees and expenses paid or payable in connection with the Transactions;
(viii) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or Junior Capital or any capital contribution to the Company;
(ix) any investment by any Affiliate of the Company in securities or term loans of the Company or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any such Affiliate in connection therewith) so long as such securities or term loans are being offered generally to investors (other than Affiliates of the Company) on the same or more favorable terms; and
(x) any transactions undertaken in connection with the VS Transaction, the Separation, the Escrow Release Date Payment or the Escrow Release Date Distribution.
Appears in 2 contracts
Sources: Indenture (Victoria's Secret & Co.), Indenture (Victoria's Secret & Co.)
Limitation on Transactions with Affiliates. (a) The Company Goodyear shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Goodyear (an “"Affiliate Transaction”") unless such transaction is on terms:
(i1) the terms of such Affiliate Transaction that are not materially no less favorable to the Company Goodyear or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate,
(ii2) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million25,000,000,
(A) are set forth in writing, the terms of such Affiliate Transaction and
(B) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a)the Board of Directors having no personal stake in such Affiliate Transaction; and
(3) that, any Affiliate Transaction shall be deemed to have satisfied in the requirements set forth in this Section 412(a) if (x) event such Affiliate Transaction is approved by a majority involves an amount in excess of the Disinterested Directors or (y) in the event there are no Disinterested Directors$75,000,000, a fairness opinion is provided have been determined by a nationally recognized appraisal appraisal, accounting or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to Goodyear and its Restricted Subsidiaries.
(b) The provisions of Section 412(a6.05
(a) shall will not apply toprohibit:
(i1) any Restricted Payment Transactionpermitted to be paid pursuant to Section 6.02;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors;
(3) the grant of stock options or similar rights to employees and directors of Goodyear pursuant to plans approved by the Board of Directors,
(14) loans or advances to employees in the ordinary course of business of Goodyear;
(5) the entering intopayment of reasonable fees and compensation to, maintaining or performance the provision of any employment contractemployee benefit arrangements and indemnity for the benefit of, collective bargaining agreementdirectors, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into officers and employees of Goodyear and its Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of Goodyear, including vacationany Restricted Subsidiary or any joint venture or similar entity which would constitute an Affiliate Transaction solely because Goodyear or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, health, insurance, deferred compensation, severance, retirement, savings joint venture or other similar plans, programs or arrangements, entity;
(27) the payment issuance or sale of compensation, performance any Capital Stock (other than Disqualified Stock) of indemnification Goodyear;
(8) any agreement as in effect on the Effective Date described in Goodyear's SEC filings as filed on or contribution obligationsprior to the Effective Date, or any issuancerenewals, grant extensions or award amendments of stockany such agreement (so long as such renewals, optionsextensions or amendments are not less favorable in any material respect to Goodyear or its Restricted Subsidiaries) and the transactions evidenced thereby;
(9) transactions with customers, other equity-related interests clients, suppliers or other securities, to employees, officers purchasers or directors sellers of goods or services in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director each case in the ordinary course of business not involving more than $100,000 and otherwise in any one casecompliance with the terms of this Agreement which are fair to Goodyear or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management thereof, or (5) Management Advances and payments in respect thereof,are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party; or
(iii10) any transaction with effected as part of a Qualified Receivables Transaction.
(c) Notwithstanding paragraphs (a) and (b) above, the CompanyEuropean J.V. will not, nor will it permit any Restricted J.V. Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any Restricted Subsidiary or any Receivables Entity,
of its Affiliates, except (ivi) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction transactions in the ordinary course of business that are consistent with past practices or are at prices and on terms not materially and conditions no less favorable to the Company European J.V. or the relevant such Restricted J.V. Subsidiary than those that could be obtained at on an arm's-length basis from unrelated third parties in the time in a transaction with a Person who is not an Affiliate reasonable judgment of the Company,
European J.V., (viii) transactions between or among the European J.V. and the Restricted J.V. Subsidiaries not involving any other Affiliate and (iii) any transaction in the ordinary course of business, or approved Restricted Payment permitted by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSection 6.02.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/), Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company involving aggregate payments or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 10.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person, or such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a Person who is not financial point of view; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company,, if any. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of agreements that are in effect on the Initial Issuance Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any material respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) any issuance of Equity Interests (other than Disqualified Stock) to, or approved by a majority receipt of capital contributions from, Affiliates of the Board Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Initial Issuance Date and as it may be amended, modified or supplemented from time to time, provided that any such amendment, modification or supplement relating to reimbursement of Directorsthe General Partner for expenses is not less favorable to the Company and its Restricted Subsidiaries in any material respect than the relevant provision of the Partnership Agreement prior to such amendment, between modification or supplement;
(9) in the case of contracts for the purchase or sale of refined petroleum products or other Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are (a) entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with third parties or (b) otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries than those that would be available in a transaction with an unrelated third party;
(10) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary and any Affiliate of the Company; provided that such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company controlled or such Restricted Subsidiary, as reasonably determined by the Company that is a joint venture or similar entity,Company; and
(vii11) any transaction in which the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Company or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (viii1) of the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsfirst paragraph of this Section 4.11.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 20.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer officer, director or director consultant of or to the Company, any Restricted Subsidiary or any parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such management members, employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any parent (as determined in good faith by the Company or such SubsidiaryCompany, which determination shall be conclusive), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any parent in the ordinary course of business not involving more than $100,000 120,000 in any one case, or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries and/or one or any Receivables Entity,more Special Purpose Entities;
(iv) any transaction arising out of agreements agreements, arrangements or instruments in existence on the Issue Date, and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,;
(vii1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus outthe Spin-of-pocket expenses in connection with the Transactions, Off Documents and (2) payment payments made pursuant to CDR any of the Spin-Off Documents or any Affiliate that are approved by a majority of CDR the Board of fees of up to $2.0 million Directors in any fiscal yeargood faith, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, andwhose determination shall be conclusive;
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), thereof and all transactions contemplated by the Spin-Off Documents) and all fees and expenses paid or payable in connection with the Transactions;
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or any capital contribution to the Company; and
(x) transactions permitted by, and complying with, the provisions of Article V solely for the purpose of forming a parent or effecting a transaction of the type described under Section 501(b).
Appears in 2 contracts
Sources: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, directly sell, lease, transfer or indirectlyotherwise dispose of any of its properties or assets to, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of purchase any property or asset from, or enter into any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a)benefit of, any Affiliate Transaction shall be deemed to have satisfied (each of the requirements set forth in this Section 412(a) if foregoing, an "Affiliate Transaction"), unless (xa) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there made on terms that are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Subsidiary with an unrelated person and (b) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25 million in any fiscal year, a Person who is not an Affiliate resolution of the Company,
Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (via) any transaction in the ordinary course above and such Affiliate Transaction or series of business, or related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors; provided, between however, that (i) any employment agreement entered into by the Company or any Restricted Subsidiary of its Subsidiaries in the ordinary course of business and any Affiliate consistent with the past practice of the Company controlled by or such Subsidiary; (ii) transactions between or among the Company that is a joint venture or similar entity,
and/or its Subsidiaries, (viiiii) Affiliate Transactions entered into prior to the execution, delivery and performance date of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate issuance of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, Securities under this Indenture and (2iv) payment to CDR or any Affiliate Transactions entered into in the ordinary course of CDR business of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiariesor such Subsidiary, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the shall be deemed not to be Affiliate Transactions.
Appears in 2 contracts
Sources: Indenture (Primus Guaranty LTD), Indenture (Primus Guaranty LTD)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease or exchange of any property or the rendering of any serviceservices) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the such transaction or series of transactions is on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be obtained obtainable at the such time in a comparable transaction in arm's-length dealings with a Person who is not such an Affiliate unrelated third party, and (ii) if such Affiliate Transaction involves the Company delivers to the Trustee (A) with respect to any transaction or series of transactions involving aggregate consideration payments in excess of $15.0 500,000, annually, an Officers' Certificate certifying that such transaction or series of related transactions complies with clause (i) above and (B) with respect to any transaction or series of transactions involving aggregate payments in excess of $2.0 million, the terms annually, an Officers' Certificate certifying that such transaction or series of such Affiliate Transaction have related transactions has been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if Board of Directors of the Company (x) such Affiliate Transaction is and approved by a majority of the Disinterested Independent Directors or (y) or, in the event there are no Disinterested Directorsis only one Independent Director, by such Independent Director), and (iii) with respect to any transaction or series of transactions involving aggregate payments in excess of $5.0 million, annually, an opinion as to the fairness to the Company from a fairness opinion is provided financial point of view issued by a nationally recognized appraisal or an investment banking firm with respect to such Affiliate Transactionof national standing.
(b) The provisions of Section 412(a4.14(a) shall will not apply to:
to (i) employment agreements or compensation or employee benefit arrangements with any Restricted Payment Transaction,
(1) officer, director or employee of the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement Company or any other similar arrangement for or with any employee, officer or director heretofore or hereafter of its Restricted Subsidiaries entered into in the ordinary course of businessbusiness (including customary benefits thereunder and including reimbursement or advancement of out-of-pocket expenses, including vacation, health, and director's and officer's liability insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ); (2ii) the payment of compensationexpense sharing arrangement between the Company and Weinberg Capital Corporation regarding the expenses incurred with resp▇▇▇ ▇▇ ▇he Company's Cleveland, performance of indemnification Ohio headquarters; (iii) any transaction entered into by or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of among the Company or any one of its Restricted Subsidiaries with one or more Restricted Subsidiaries of the Company; (as determined in good faith by the Company or such Subsidiary), (4iv) any transaction permitted by Section 4.11(b); (v) transactions permitted by, and complying with, Article Five; and (vi) transactions with an officer suppliers or director other purchases or sales of goods or services, in each case in the ordinary course of business not involving more than $100,000 (including, without limitation, pursuant to joint venture agreements) and otherwise in any one casecompliance with the terms of this Indenture which, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the reasonable determination of the Board of Directors of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business are on terms not materially no less favorable to the Company or the relevant its Restricted Subsidiary Subsidiaries than those that could be reasonably have been obtained at the such time in a transaction with a Person who is not from an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsunaffiliated party.
Appears in 2 contracts
Sources: Indenture (Hawk Motors Inc), Indenture (Hawk Brake Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit permit, cause or suffer any Restricted Subsidiary to, directly or indirectly, conduct any business, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, loan, advance or conduct Guarantee or engage in any other transaction (or series of related transactions (including which are similar or part of a common plan) with or for the purchase, sale, lease or exchange benefit of any property of their respective Affiliates or any beneficial owner of 10% or more of the rendering of any service) with any Affiliate Common Stock of the Company or any officer or director of the Company or any Subsidiary (each, an “"Affiliate Transaction”) "), unless (i) the terms of such the Affiliate Transaction are not materially set forth in writing and are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained at the time available in a comparable transaction with a Person who is not such an Affiliate and (ii) if such unaffiliated third party. Each Affiliate Transaction involves (or series of related Affiliate Transactions) involving aggregate payments and/or other consideration having Fair Market Value (i) in excess of $15.0 million1 million shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions comply with the foregoing provisions, (ii) in excess of $5 million shall further require the approval of a majority of the Disinterested Directors and (iii) in excess of $10 million shall further require that the Company obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction have been approved by (or series of related Affiliate Transactions) are fair to the Company or the Restricted Subsidiary, as the case may be, from a majority financial point of view; provided, that this clause (iii) shall not apply to purchases of goods and/or services in the ordinary course of the Disinterested DirectorsCompany's business, and on terms no less favorable to the Company than those customarily granted to purchasers of such goods and/or services, from Paradyne Corporation or Xylan Corporation. For purposes of this Section 412(a)10.14, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) as to which a written opinion has been obtained from an Independent Financial Advisor, on the basis set forth in the event there preceding sentence, shall be deemed to be on terms that are no Disinterested Directorsless favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a fairness opinion is provided by a nationally recognized appraisal or investment banking firm comparable transaction with respect to such Affiliate Transaction.
(b) The provisions of an unaffiliated third party and, therefore, shall be permitted under this Section 412(a) 10.14. Notwithstanding the foregoing, the restrictions set forth in this Section 10.14 shall not apply to:
to (i) transactions with or among, or solely for the benefit of, the Company and/or any of the Restricted Subsidiaries, provided that in any such case, no officer, director or beneficial owner of 10% or more of any class of Capital Stock of the Company shall beneficially own any Capital Stock of any such Restricted Subsidiary, (ii) transactions pursuant to agreements and arrangements existing on the Issue Date and specified on a schedule to the Indenture, (iii) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or made in compliance with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsSection 10.13, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3iv) the payment of reasonable and customary regular fees to directors of the Company or any Restricted Subsidiary who are not employees of its Subsidiaries the Company or any Restricted Subsidiary, (as determined in good faith v) employment agreements, stock option agreements and indemnification arrangements entered into by the Company or such Subsidiary), (4) any transaction with an officer or director of its Restricted Subsidiaries in the ordinary course of business not involving more than $100,000 in any one caseand consistent with industry practice, or (5vi) Management Advances the granting and payments in respect thereof,
(iii) any transaction with performance of registration rights for securities of the Company, (vii) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments for travel, entertainment, moving and other relocation expenses, in existence on the Issue Date, and any payments each case made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction and consistent with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactionsindustry practice, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsany Permitted Investment.
Appears in 2 contracts
Sources: Indenture (Rhythms Net Connections Inc), Indenture (Rhythms Net Connections Inc)
Limitation on Transactions with Affiliates. (a1) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company its Affiliates (each an “Affiliate Transaction”) unless ), unless:
(ia) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to be obtained at the time in a comparable transaction with at such time on an arm’s-length basis from a Person who that is not such an Affiliate and of the Company;
(iib) if in the event that such Affiliate Transaction involves aggregate consideration payments, or transfers of property or services with a Fair Market Value, in excess of $15.0 U.S.$7.5 million, the terms of such Affiliate Transaction have been will be approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if Board of Directors of the Company (x) such Affiliate Transaction is approved by including a majority of the Disinterested disinterested members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors or has determined that such transaction complies with the preceding provisions; and
(yc) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to that such Affiliate TransactionTransaction involves aggregate payments, or transfers of property or services with a Fair Market Value in excess of U.S.$10.0 million, the Company will, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction (other than (i) loans or extensions of credit or (ii) transactions involving listed securities or whose terms can otherwise be verified by reference to publicly available information) to the Company and the relevant Restricted Subsidiary (if any) from a financial point of view from an Independent Financial Advisor and file the same with the Trustee.
(b2) The provisions of Section 412(aParagraph (1) shall above will not apply to:
(ia) Affiliate Transactions with or among the Company and any Restricted Payment Transaction,Subsidiary (other than a Receivables Entity) or between or among Restricted Subsidiaries (other than a Receivables Entity);
(1b) the entering intofees and compensation paid to, maintaining or performance of and any employment contractindemnity provided on behalf of, collective bargaining agreementofficers, benefit plandirectors, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers consultants or directors in the ordinary course of business, (3) the payment of reasonable fees to directors agents of the Company or any of its Subsidiaries (Restricted Subsidiary as determined in good faith by the Company’s Board of Directors or shareholders, as applicable;
(c) Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date and any amendment, modification or replacement of such agreement (so long as such amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, than the original agreement as in effect on the Issue Date);
(d) any Restricted Payments and Permitted Investments made in compliance with Section 3.13; and
(e) loans and advances to officers, directors and employees of the Company or such Subsidiary), (4) any transaction with an officer or director Restricted Subsidiary in the ordinary course of business in an aggregate principal amount not involving more than $100,000 in exceeding U.S.$2.0 million at any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionstime.
Appears in 2 contracts
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payments in excess of $25,000,000 with any Affiliate of the Company (an “Affiliate Transaction”) unless such transaction is on terms:
(i1) the terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm’s length dealings with a Person who is not such an Affiliate and Affiliate,
(ii2) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million50,000,000,
(A) are set forth in writing, the terms of such Affiliate Transaction and
(B) have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority members of the Disinterested Board of Directors or (y) having no personal stake in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a4.11(a) shall will not apply toprohibit:
(i1) any Permitted Investment,
(2) any Restricted Payment Transactionpermitted to be paid or made pursuant to Section 4.07,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment any issuance of reasonable fees to directors shares of Capital Stock of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), Company,
(4) any transaction agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged or consolidated with or into the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the reasonable determination of an officer Officer of the Company, than the applicable agreement as in effect on the date of such acquisition, merger or consolidation,
(5) any employment arrangements, employee benefit plans or arrangements (including pension plans, health and life insurance plans, retiree medical plans, deferred compensation plans, indemnification agreements, stock options and restricted stock awards and stock ownership plans) or related trust agreements or similar arrangements, in each case, approved by the Board of Directors and any grant or issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, any of the foregoing,
(6) (i) reimbursement of officer, director and employee travel and lodging costs and other business expenses incurred in the ordinary course of business not involving more than $100,000 in any one caseand (ii) loans and advances to officers, or (5) Management Advances directors and payments in respect thereofemployees of the Company and Restricted Subsidiaries for travel, entertainment, relocation and analogous ordinary business purposes,
(iii7) the payment of fees and other compensation to, and customary indemnities provided to, officers, employees and directors of the Company or its Subsidiaries,
(8) any transaction with between the Company, any Company and a Restricted Subsidiary or any Receivables Entitybetween Restricted Subsidiaries,
(iv9) the provision by Persons who may be deemed Affiliates of the Company of investment advisory services to the Company or its Restricted Subsidiaries with respect to the Company’s or its Restricted Subsidiaries’ employee benefit plans,
(10) transactions pursuant to any transaction arising out of agreements contract, agreement or instruments instrument in existence effect on the Issue Date, as amended, modified or replaced from time to time, so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Company and any payments made pursuant thereto,the Restricted Subsidiaries than those in effect on the Issue Date, or
(v11) any transaction transactions with customers, clients, suppliers or purchasers or sellers of goods or services in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions Subsidiaries and otherwise in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection compliance with the Transactionsterms of this Indenture.
Appears in 2 contracts
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless such Affiliate Transaction is on terms (i) the terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate, (ii) if that, in the event that such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 5.0 million, the terms of such Affiliate Transaction (1) are set forth in writing and (2) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth Governing Board of the Company having no personal stake in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or and (yiii) that, in the event there are no Disinterested Directorsthat such Affiliate Transaction involves an amount in excess of $20.0 million, a fairness opinion is provided have been determined by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 412(a4.07(a) shall not apply to:
prohibit (i) any Restricted Payment Transaction,
or Permitted Investment permitted to be paid pursuant to Section 4.04, (1ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise 39 pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Governing Board of the Company, (iii) the entering intogrant of stock options or similar rights to employees and directors of the Company pursuant to plans approved by the Governing Board of the Company, maintaining (iv) loans or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into advances to employees in the ordinary course of businessbusiness in accordance with past practices of the Company, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsbut in any event not to exceed $10.0 million in the aggregate outstanding at any one time, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3v) the payment of reasonable fees to directors of the Company or any of and its Subsidiaries (as determined in good faith by who are not employees of the Company or such Subsidiary)its Subsidiaries, (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any and a Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
between Restricted Subsidiaries, (vii) amounts payable to Dex Media pursuant to the executionmanagement agreement as in effect on the Closing Date on the terms described in the Offering Memorandum or pursuant to any amendment, delivery and performance restatement or replacement thereof to the extent that the terms of any Tax Sharing Agreement and such amendment, restatement or replacement are not, taken as a whole, disadvantageous to the Holders in any Management Agreementsmaterial respect, including provided that any payments pursuant to this clause (1vii) payment with respect to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of management fees of up to shall not exceed $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all reasonable out-of-pocket expenses incurred by CDR or any such Affiliate Dex Media in connection with its performance of management management, consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactionsany transaction with customers, all transactions clients, suppliers or purchasers or sellers of goods or services, in connection therewith (including the financing thereof), and all fees and expenses paid or payable each case in connection compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable good faith determination of the Governing Board or its senior management, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party, (ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any agreements with Dex Media West or Dex Media that are described in the Offering Memorandum under the heading "The Transactions-Agreements between us and Dex Media West and/or Dex Media" to which it is a party as of the closing date of the Dex Media West Acquisition on the terms described in the Offering Memorandum and any amendments thereto and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to such agreements or under any such similar agreements shall only be permitted by this clause (ix) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not disadvantageous to the Holders in any material respect, or (x) the sale of receivables on substantially the terms that receivables are purchased by Qwest Corporation pursuant to the billing and collections services agreement as in effect on the Closing Date and as described in the Offering Memorandum.
Appears in 2 contracts
Sources: Indenture (Dex Media Inc), Indenture (Dex Media International Inc)
Limitation on Transactions with Affiliates. (a) The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or Property, the rendering of any service) service or the payment of any management, advisory or similar fees, with any Affiliate of (other than the Company (an “Affiliate Transaction”Borrower or any Guarantor) unless such transaction is (ia) otherwise expressly permitted under this Agreement or (b) in the ordinary course of business and (in each case under clause (a) or (b)) upon fair and reasonable terms of such Affiliate Transaction are not materially no less favorable to the Company or such Restricted SubsidiaryParent, as the case may be, than those that could be obtained at the time it would obtain in a comparable arm's length transaction with a Person who that is not such an Affiliate and Affiliate, except (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 millionto the extent not otherwise restricted by this Agreement, the Indentures or the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a)Parent's preferred stock, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth which are then in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
effect): (i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, employee benefit plan, program or arrangement, related trust officer and director indemnification agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into by the Parent in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ; (2ii) any transaction solely between the Parent and any Restricted Subsidiary; (iii) the payment of compensation, performance reasonable and customary regular fees and indemnity payments to directors of indemnification or contribution obligations, or the Parent who are not employees of the Parent and the payment of reasonable compensation and indemnity payments to officers of the Parent; (iv) any issuance, grant or award of stock, options, other equity-related interests payments or other securities, transactions pursuant to employees, officers any tax-sharing agreement between the Parent and any Person with which the Parent files a consolidated tax return or directors with which the Parent is part of a consolidated group for tax purposes; (v) any payment or Investment or payment permitted by Section 8.3; (vi) any agreement among the Parent and its Restricted Subsidiaries existing and as in effect on the Closing Date (provided that any such agreement may be amended or modified to the extent that the interests of the Parent and the Lenders are not materially and adversely affected thereby); (vii) payments under the agreements set forth on Schedule 8.6 in the ordinary course of business, (3) the payment of reasonable fees Parent's business and on terms no less favorable to directors of the Company or any of its Subsidiaries (as determined Parent than would have been obtained in good faith by the Company or such Subsidiary), (4) any a comparable arm's length transaction with a Person that is not an officer Affiliate; (viii) loans or director advances to employees in the ordinary course of the Parent's business not involving more than to exceed in aggregate $100,000 in 3,000,000 at any one case, or time outstanding; and (5) Management Advances and payments in respect thereof,
(iiiix) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out issuance of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate Capital Stock of the Company,
(vi) Parent to any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsAffiliates.
Appears in 2 contracts
Sources: Credit Agreement (Dobson Communications Corp), Credit Agreement (Dobson Communications Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent (each, an “Affiliate Transaction”) unless (i) the terms or series of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, transactions having a value greater than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 2.5 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that reasonably could be obtained at the time of such transaction in arm’s-length dealings in a comparable transaction with a Person who that is not an Affiliate; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Parent shall have received an opinion as to the fairness to the Parent and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view or that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate issued by an accounting, appraisal or investment banking firm of the Company,international standing.
(vib) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.13(a):
(i) any transaction employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and compensation (including bonuses and equity compensation) paid to and other benefits (including retirement, health and other benefit plans) and indemnification arrangements provided on behalf of directors, officers and employees of the Parent or any Restricted Subsidiary;
(ii) transactions between or among or primarily for the benefit of the Parent and/or its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Equity Interests of the Parent, restricted share plans, long-term incentive plans, share appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees approved by the Board of Directors;
(v) Guarantees issued by the Parent or a majority Restricted Subsidiary in accordance with Section 4.3 (Incurrence of Indebtedness and Issuance of Preferred Stock);
(vi) the performance of obligations of the Parent or any Restricted Subsidiary under the terms of any agreement to which the Parent or any Restricted Subsidiary is a party on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date shall be permitted to the extent that its terms, taken as a whole, are not more materially disadvantageous to the Holders than the terms of the agreements in effect on the Issue Date;
(vii) any issuance of Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of the Parent;
(viii) any Restricted Payment that does not violate the provisions of Section 4.4 (Limitation on Restricted Payments) of this Indenture or Permitted Investments;
(ix) loans or advances to employees in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding;
(x) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Parent and/or one or more Restricted Subsidiaries, on the one hand, and any other Person with which the Parent or such Restricted Subsidiaries are required or permitted to file a consolidated tax return or with which the Parent or such Restricted Subsidiaries are part of a consolidated group for tax purposes, on the other hand, provided that any payments by the Parent and the Restricted Subsidiaries required under such agreement are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(xi) transactions contemplated by supply, purchase or sale agreements with suppliers or purchasers or sellers of goods or services (other than the Parent or its Restricted Subsidiaries) in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are in the aggregate fair to the Parent or the Restricted Subsidiaries, in the reasonable determination of the Board of Directors, between the Company Directors or any Restricted Subsidiary and any Affiliate senior management of the Company controlled by the Company that is a joint venture Parent, or similar entity,are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(viixii) any of the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses transactions contemplated in connection with the Restructuring Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viiixiii) the Transactions, all transactions in connection therewith (including granting and performance of SEC registration rights for securities of the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsParent.
Appears in 2 contracts
Sources: Indenture (Latchey LTD), Indenture (CEDC Finance Corp LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company Company, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the board of directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR CDR, Carlyle or ML or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR their respective Affiliates of fees of up to $2.0 7.5 million in the aggregate in any fiscal year, and fees in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR CDR, Carlyle or ML or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or capital contribution to the Company.
Appears in 2 contracts
Sources: Indenture (Hertz Global Holdings Inc), Indenture (Hertz Global Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering intoAffiliate Transaction is on terms, maintaining or performance of any employment contracttaken as a whole, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a Person who is not an Affiliate resolution of the Company,Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of (a) corporate sharing agreements that are with MRMC and its Subsidiaries with respect to general overhead and other administrative matters and (b) other agreements that are identified in Schedule I to this Indenture, in each case as such agreements are in effect on the Issue Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company in any material respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment; and
(9) in the case of contracts for gathering, transporting, treating, processing, prilling or forming, refining, marketing, distributing, storing, terminalling or otherwise handling Hydrocarbons, or approved activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsthird parties.
Appears in 2 contracts
Sources: Indenture (Martin Midstream Partners L.P.), Indenture (Martin Midstream Partners L.P.)
Limitation on Transactions with Affiliates. (a) The Company Guarantor shall not, and shall not permit the Issuer or any Restricted Subsidiary Group Member to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) guarantee with any Affiliate of the Company Guarantor, the Issuer or such Restricted Group Member (each, an “Affiliate Transaction”) unless ), involving aggregate payments in excess of €5.0 million unless:
(i) the terms of such Affiliate Transaction is on terms that are not materially no less favorable to the Company Guarantor, the Issuer or such the relevant Restricted SubsidiaryGroup Member, as the case may be, than those that could be would have been obtained at the time in a comparable arm's length transaction by the Guarantor, the Issuer or such Restricted Group Member, as the case may be, with a Person who is not such an Affiliate and unrelated Person; and
(ii) if such the Guarantor delivers to the Trustee with respect to any Affiliate Transaction involves or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 €25.0 million, a resolution of the terms Board of Directors of the Guarantor set forth in an Officers' Certificate (on which the Trustee shall rely absolutely) certifying that such Affiliate Transaction have complies with this Section 4.09 and that such Affiliate Transaction has been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority members of the Disinterested Board of Directors or (y) of the Guarantor disinterested in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The Notwithstanding Section 4.09(a) above, the following items (including the performance of obligations related thereto) shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 412(a) shall not apply to:4.09(a):
(i) any Restricted Payment Transaction,
(1) stock option, employee benefit plan or employment or severance agreement entered into by the entering intoGuarantor, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement the Issuer or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into Restricted Group Member in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ;
(2ii) the payment of compensationreasonable directors' fees, performance expenses and indemnities, and agreement with respect thereto;
(iii) transactions between or among the Guarantor, the Issuer and/or Restricted Group Members;
(iv) any agreement or arrangement of indemnification or contribution obligationsthe Guarantor, the Issuer and/or Restricted Group Members as in effect on the Issue Date or any issuancetransaction contemplated thereby or similar in nature thereto;
(v) any Restricted Payment permitted to be made pursuant to Section 4.07 and any Permitted Investments;
(vi) transactions with customers, grant clients, suppliers, joint venture partners, consultants or award purchasers or sellers of stockgoods or services or any management services or support agreements, options, other equity-related interests or other securities, to employees, officers or directors in each case in the ordinary course of business, (3) the payment of reasonable fees to directors business of the Company Guarantor, the Issuer and the Restricted Group Members and otherwise in compliance with the terms of the Indenture; provided that in the reasonable determination of the Board of Directors or any an executive officer of its Subsidiaries (the Guarantor, the Issuer or the relevant Restricted Group Member, such transactions or agreements are on terms that are not materially less favorable, when taken as determined a whole, to the Guarantor, the Issuer or the relevant Restricted Group Member than those that could have been obtained at the time of such transactions or agreements in good faith a comparable transaction or agreement by the Company Guarantor, the Issuer or such SubsidiaryRestricted Group Member with an unrelated Person;
(vii) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Guarantor to Affiliates of the Guarantor and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Guarantor (and the performance of such agreements), ;
(4viii) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who (other than an Unrestricted Group Member) that is not an Affiliate of the Company,Guarantor solely because the Guarantor, the Issuer or any Restricted Group Member owns, directly or indirectly, any equity interest in or otherwise controls such Person;
(viix) any transaction merger, amalgamation, arrangement, consolidation or other reorganization of the Guarantor with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating the Guarantor in a new jurisdiction;
(x) the ordinary course entering into of businessa tax sharing agreement, or approved by a majority of the Board of Directorspayments pursuant thereto, between the Company Guarantor and one or any Restricted Subsidiary more subsidiaries, on the one hand, and any Affiliate of other Person with which the Company controlled by Guarantor and such subsidiaries are required or permitted to file a consolidated tax return or with which the Company that is a joint venture or similar entity,
(vii) the execution, delivery Guarantor and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR such subsidiaries are part of a fee of up to $18.0 million plus out-of-pocket expenses in connection with consolidated group for tax purposes, on the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, hand; and
(viiixi) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid pledges of Equity Interests or payable in connection with the TransactionsDebt of Unrestricted Group Members.
Appears in 2 contracts
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering intoAffiliate Transaction is on terms, maintaining or performance of any employment contracttaken as a whole, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto;
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person who that is not an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with the terms of (a) agreements described in the annual report on Form 10-K of the Company for the fiscal year ended December 31, 2021 under the caption “Transactions with Related Persons” or in note 13 to the Company,’s audited historical financial statements included in such annual report, in each case, as such agreements are in effect on the Issue Date, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, no less advantageous to the Company or no less favorable to the Holders in any material respect than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, modified or supplemented from time to time, so long as any transaction such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s-length basis;
(x) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” with respect to clause (b) so long as any such transaction, if involving aggregate consideration in excess of $25.0 million, has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company;
(xi) transactions between the Company and any Person, between a director of which is also a director of the General Partner or, if applicable, the Company; provided, however, that such director abstains from voting as a director of the General Partner or, if applicable, the Company on any matter involving such other Person; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) as the Transactionscase may be, all transactions in connection therewith (including delivers to the financing thereofTrustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 4.11(a), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Twentieth Supplemental Indenture (Genesis Energy Lp), Eighteenth Supplemental Indenture (Genesis Energy Lp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct suffer to exist, any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease or exchange of any property or services) with, or for the rendering of any service) with benefit of, any Affiliate of the Company or any Restricted Subsidiary (an “other than the Company or a Restricted Subsidiary so long as no Affiliate Transaction”of the Company (other than a Restricted Subsidiary) or beneficial holder of 5% or more of any class or series of Capital Stock of the Company shall beneficially own Capital Stock in such Restricted Subsidiary), unless (i) the such transaction or series of transactions are on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained at the time in a an arm's-length transaction with a Person who is third parties that are not such an Affiliate and Affiliates of the Company, (ii) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate consideration in excess of equal to or greater than $15.0 million5,000,000, the terms Company has delivered an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above and (iii) with respect to any transaction or series of related transactions involving aggregate consideration equal to or greater than $10,000,000, such Affiliate Transaction have transaction or series of related transactions has been approved by the Board of Directors of the Company (including a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied ) or the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by Company has obtained a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness written opinion is provided by from a nationally recognized appraisal or investment banking firm with respect to the effect that such Affiliate Transaction.
(b) The provisions transaction or series of related transactions is fair to the Company or its Restricted Subsidiary, as the case may be, from a financial point of view; provided, however, that this Section 412(a) 1011 shall not apply to:
(i) any Restricted Payment Transaction,
restrict (1) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement Company or any other similar arrangement for or with any employee, officer or director heretofore or hereafter Restricted Subsidiary entered into in the ordinary course of business, business (including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementscustomary benefits thereunder) and payments under any indemnification arrangements permitted by applicable law, (2) the payment issue and sale by the Company to its stockholders of compensationCapital Stock (other than Redeemable Capital Stock), performance (3) any dividends made in compliance with Section 1009, (4) loans and advances to officers, directors, employees and consultants of indemnification or contribution obligations, the Company or any issuanceRestricted Subsidiary for travel, grant or award of stockentertainment, optionsmoving and other relocation expenses, other equity-related interests or other securities, to employees, officers or directors in each case made in the ordinary course of business, (35) the payment performance of reasonable fees any written agreement as in effect on the date of this Indenture and as amended from time to directors of time, provided that any such amendment is not less favorable in any material respect to the Company or any Restricted Subsidiary than the terms in effect on the date of its Subsidiaries this Indenture, (as determined in good faith by 6) tax sharing agreements between the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out providing for the payment by such Restricted Subsidiary of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable an amount equal to the Company or the relevant hypothetical United States tax liability of such Restricted Subsidiary than those that could be obtained at the time in a transaction as if such Restricted Subsidiary had filed its own United States federal tax return for any given tax year and (7) transactions with a Person who is not an Affiliate of the Company,
(vi) or by any transaction Accounts Receivable Subsidiary made in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Indenture (Nine West Group Inc /De), Indenture (Nine West Group Inc /De)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into make any payment to or conduct sell, lease, transfer or otherwise dispose of any transaction of the Company’s or series of related transactions (including the purchasetheir properties or assets to, sale, lease or exchange of purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the rendering of any service) with benefit of, any Affiliate (including any Unrestricted Subsidiary) (each of the Company (foregoing, an “Affiliate Transaction”) unless involving aggregate consideration in excess of $5.0 million, unless:
(i1) the terms of such Affiliate Transaction is on terms that are not materially less favorable favorable, taken as a whole, to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be have been obtained in a comparable transaction at the time by the Company or such Restricted Subsidiary with an unrelated Person; provided that such transaction shall be deemed to be at least as favorable as the terms that could have been obtained in a comparable transaction with a an unrelated Person who if such transaction is not such an Affiliate and approved by the disinterested members of the Company’s Board of Directors or any duly constituted committee thereof; and
(ii2) if such Affiliate Transaction involves aggregate consideration payments in excess of $15.0 25.0 million, the terms of such Affiliate Transaction transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority disinterested members of the Disinterested Board of Directors or (y) in of the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionCompany.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 412(a4.11(a) shall not apply tohereof:
(i) any Restricted Payment Transaction,
(1) the entering intoentry into employment agreements and the adoption of compensation or benefit plans for the benefit of, maintaining or performance payment of compensation to, directors, officers, consultants or employees of the Company and its Restricted Subsidiaries (whether directly or indirectly and including through any employment contractPerson owned or controlled by any of such directors, collective bargaining agreementofficers or employees including, without limitation, salaries, fees, bonuses, reimbursement of expenses, customary indemnities (including under customary insurance policies), equity and incentive arrangements and payments and employee benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, and pension expenses);
(2) the payment of compensation, performance reasonable fees or expenses and the provision of indemnification or contribution obligationssimilar arrangements for current or former officers, or any issuancedirectors, grant or award of stock, options, other equity-related interests or other securities, to employees, officers agents or directors in the ordinary course of business, (3) the payment of reasonable fees to directors consultants of the Company or any of its Restricted Subsidiaries pursuant to charter, bylaw, statutory or contractual provisions;
(as determined in good faith by 3) transactions between or among the Company and/or any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such Subsidiarytransaction) or between or among Restricted Subsidiaries;
(4) Restricted Payments not prohibited by Section 4.07 hereof and Permitted Investments (other than pursuant to clauses (3), (4), (10) any transaction with an officer or director in and (15) of the ordinary course of business not involving more than $100,000 in any one case, or definition thereof);
(5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary transactions between or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between among the Company or any Restricted Subsidiary and any Affiliate of the Company controlled Company, the Equity Interests of which Affiliate are owned solely by the Company that is a joint venture or similar entity,one of the Restricted Subsidiaries, on the one hand, and by Persons who are not Affiliates of the Company or the Restricted Subsidiaries, on the other hand;
(vii6) payments made or performance under any agreements or arrangements in effect on the execution, delivery and performance date of any Tax Sharing Agreement this Indenture or described or incorporated by reference in the Offering Memorandum and any Management Agreementsmodifications, including extensions or renewals thereof that are no less favorable to the Company or the applicable Restricted Subsidiary in any material respect than such agreement as in effect on the date of this Indenture;
(17) payment so long as they comply with Section 4.11(a)(1), transactions with customers, clients, lessors, landlords, suppliers, contractors, or purchasers or sellers of good or services that are Affiliates, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(8) issuances or sales of Equity Interests to CDR Affiliates of the Company or its Restricted Subsidiaries not otherwise prohibited by this Indenture and the granting of registration and other customary rights in connection therewith;
(9) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to any director, officer, employee or consultant of the Company or its Restricted Subsidiaries or any other Affiliates of the Company;
(10) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, deliver to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of this Section 4.11;
(11) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(12) loans or advances to employees or consultants in the ordinary course of business of the Company or any Restricted Subsidiary, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time;
(13) transactions between or among the Company or any Restricted Subsidiary and any Person which is an Affiliate solely because a director of CDR such Person is also a director of the Company; provided, however, that such director abstains from voting as a fee director on any matter involving such other Person;
(14) transactions pursuant to or contemplated by and payments in connection with, and, in each case, in accordance with, the terms of up the Partnership Parks Agreements;
(15) transactions pursuant to $18.0 million plus out-of-pocket expenses or contemplated by and payments in connection with the Transactions, and HWP Obligations;
(216) payment to CDR any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any Affiliate of CDR the Restricted Subsidiaries the majority of fees which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates; and
(17) (i) investments by Affiliates in securities of up to $2.0 million in the Company or any fiscal year, of the Restricted Subsidiaries (and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all payment of reasonable out-of-pocket expenses incurred by CDR such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities of the Company or any such Affiliate of the Restricted Subsidiaries contemplated in connection with its performance of management consulting, monitoring, financial advisory the foregoing subclause (i) or that were acquired from Persons other services with respect to than the Company and its the Restricted Subsidiaries, and
(viii) the Transactionsin each case, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection accordance with the Transactionsterms of such securities.
Appears in 2 contracts
Sources: Indenture (Six Flags Entertainment Corp), Indenture (Six Flags Entertainment Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering intoAffiliate Transaction is on terms, maintaining or performance of any employment contracttaken as a whole, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto;
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person who that is not an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with the terms of (a) agreements described in the annual report on Form 10-K of the Company for the fiscal year ended December 31, 2016 under the caption “Transactions with Related Persons” or in note 13 to the Company,’s audited historical financial statements included in such annual report, in each case, as such agreements are in effect on the Issue Date, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, no less advantageous to the Company or no less favorable to the Holders in any material respect than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, modified or supplemented from time to time, so long as any transaction such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s-length basis;
(x) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” with respect to clause (b) so long as any such transaction, if involving aggregate consideration in excess of $25.0 million, has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company;
(xi) transactions between the Company and any Person, between a director of which is also a director of the General Partner or, if applicable, the Company; provided, however, that such director abstains from voting as a director of the General Partner or, if applicable, the Company on any matter involving such other Person; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) as the Transactionscase may be, all transactions in connection therewith (including delivers to the financing thereofTrustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 4.11(a), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Eleventh Supplemental Indenture (Genesis Energy Lp), Eighth Supplemental Indenture (Genesis Energy Lp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate payments or consideration in excess of $25,000,000 unless:
(i) the terms of such the Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained at the time of the Affiliate Transaction in a transaction arm’s-length dealings with a Person who is not such an Affiliate and Affiliate; and
(ii) if such Affiliate Transaction involves aggregate consideration an amount in excess of $15.0 million50,000,000, the terms of such the Affiliate Transaction have been approved by are set forth in writing and a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority directors of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm Company disinterested with respect to such Affiliate TransactionTransaction have determined in good faith that the criteria set forth in Section 4.07(a)(i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors.
(b) The provisions of Section 412(a4.07(a) shall not apply toprohibit:
(i) any transaction between or among the Company or any of its Restricted Subsidiaries and any transaction between or among the Company or any of its Subsidiaries with respect to a Permitted Receivables Facility;
(ii) any Permitted Investment or any Restricted Payment Transaction,permitted to be made pursuant to Section 4.04;
(1iii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the entering intofunding of, maintaining or performance of any employment contractarrangements, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter stock options and stock ownership plans entered into in the ordinary course of business;
(iv) payroll, including vacationtravel, health, insurance, deferred compensation, severance, retirement, savings loans or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, advances to employees, officers or directors and employees in the ordinary course of businessbusiness of the Company and its Restricted Subsidiaries, and on customary terms;
(3v) any employment, consulting, service or termination agreement, or reasonable and customary indemnification agreement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business (and payments made pursuant thereto), and the payment of reasonable fees and expenses, and the provision of customary indemnities, to directors directors, officers, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacities as such;
(as determined in good faith by the Company or such Subsidiary), (4vi) any transaction with a Person (other than an officer Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or director a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(vii) any transaction with a joint venture partner in the ordinary course of business not involving more than $100,000 of the Company and its Restricted Subsidiaries and otherwise in any one casecompliance with the terms of this Indenture; provided that, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the reasonable, good faith determination of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any such transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be have reasonably been obtained at the time of such transaction in a comparable transaction by the Company or such Restricted Subsidiary with a Person who is not an Affiliate unrelated Person;
(viii) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company,;
(viix) any transaction transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness (including pursuant to joint venture agreements);
(x) transactions effected pursuant to any agreement as in effect on the Issue Date, so long as such transactions are (x) not material or approved (y) described in the Offering Memorandum and any amendment, modification or replacement of any such agreement (so long as such amendments, modifications or replacements are not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined in good faith by the Company);
(xi) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a majority result of the Board of Directors, between such transactions; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of delivers to the Trustee a written opinion from the Company controlled by to the Company effect that such transaction is fair, from a joint venture or similar entity,
(vii) the executionfinancial standpoint, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Indenture (NCR Corp), Indenture (NCR Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless such Affiliate Transaction is on terms (i) the terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate, (ii) if that, in the event that such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 5.0 million, the terms of such Affiliate Transaction (1) are set forth in writing and (2) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth Governing Board of the Company having no personal stake in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or and (yiii) that, in the event there are no Disinterested Directorsthat such Affiliate Transaction involves an amount in excess of $20.0 million, a fairness opinion is provided have been determined by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 412(a4.07(a) shall not apply to:
prohibit (i) any Restricted Payment Transaction,
or Permitted Investment permitted to be paid pursuant to Section 4.04, (1ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Governing Board of the Company, (iii) the entering into, maintaining grant of stock options or performance similar rights to employees (including employees of any employment contract, collective bargaining agreement, benefit plan, program Dex Media East or arrangement, related trust agreement Employee Subco that provide services to the Company or any other similar arrangement for Restricted Subsidiary) and directors of the Company pursuant to plans approved by the Governing Board of the Company, (iv) loans or with advances to employees (including employees of Dex Media East or Employee Subco that provide services to the Company or any employee, officer or director heretofore or hereafter entered into Restricted Subsidiary) in the ordinary course of businessbusiness in accordance with past practices of the Company, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsbut in any event not to exceed $15.0 million in the aggregate outstanding at any one time, (2v) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of compensation and reasonable fees to to, and indemnity provided on behalf of, directors of the Company or any of and its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course Governing Board of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any and a Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
between Restricted Subsidiaries, (vii) amounts payable to Parent or Dex Media pursuant to the executionManagement Agreement, delivery and performance of but in any Tax Sharing Agreement and any Management Agreements, including (1) payment event not to CDR or any Affiliate of CDR of a fee of up to exceed $18.0 5.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million aggregate in any fiscal year, and fees (viii) any transaction with customers, clients, suppliers or purchasers or sellers of goods or services, in connection each case in compliance with any acquisitionthe terms of this Indenture, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect which are fair to the Company and or its Restricted Subsidiaries, and
in the reasonable good faith determination of the Governing Board or its senior management, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party, (viiiix) the Transactionsexistence of, all transactions or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any agreements with Dex Media East or Dex Media that are described in connection therewith the Offering Memorandum under the heading "The Transactions - Agreements between us and Dex Media East and/or Dex Media" to which it is a party as of the closing date of the Acquisition on the terms described in the Offering Memorandum and any amendments thereto and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to such agreements or under any such similar agreements shall only be permitted by this clause (including ix) to the financing thereof)extent that the terms of any such amendment or new agreement, taken as a whole, are not disadvantageous to the Holders in any material respect, (x) the sale of receivables on substantially the terms that receivables are purchased by Qwest Corporation pursuant to the billing and all fees collections services agreement as in effect on the Acquisition Date and expenses paid as described in the Offering Memorandum, or payable in connection with the Transactions(xi) any consolidation, merger or conveyance, transfer or lease of assets permitted under Section 5.01.
Appears in 2 contracts
Sources: Indenture (Dex Media West LLC), Indenture (Dex Media Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company involving aggregate payments or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 10.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with a an unrelated Person who is not an Affiliate or, if in the good faith judgment of the Board of Directors of the Company,, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(vi2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of agreements that are identified in the Company’s most recent Annual Report on Form 10-K under the heading “Certain Relationships and Related Transactions, and Director Independence,” in each case as such agreements are in effect on the Initial Issuance Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any material respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) any issuance of Equity Interests (other than Disqualified Stock) to, or approved by a majority receipt of capital contributions from, Affiliates of the Board Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Initial Issuance Date and as it may be amended, modified or supplemented from time to time, provided that any such amendment, modification or supplement relating to reimbursement of Directorsthe General Partner for expenses is not less favorable to the Company and its Restricted Subsidiaries in any material respect than the relevant provision of the Partnership Agreement prior to such amendment, between modification or supplement;
(9) in the case of contracts for the purchase or sale of refined petroleum products or other Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are (a) entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with third parties or (b) otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries than those that would be available in a transaction with an unrelated third party; and
(10) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary and any Affiliate of the Company; provided that such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company controlled or such Restricted Subsidiary, as reasonably determined by the Company that is a joint venture or similar entity,
(vii) Board of Directors of the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsCompany.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Holders, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a Person who is not resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company,. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(2) transactions between or approved by a majority among any of the Board of Directors, between the Company or any and its Restricted Subsidiary and any Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company controlled by solely because the Company that is a joint venture or similar entity,owns an Equity Interest in such Person;
(vii4) transactions effected in accordance with the executionterms of agreements that are identified in Schedule I, delivery in each case as such agreements are in effect on the date of this Indenture, and performance any amendment or replacement of any Tax Sharing Agreement of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any Management Agreementsmaterial respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including (1) payment to CDR reimbursement or any Affiliate advancement of CDR of a fee of up to $18.0 million plus out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in connection accordance with the TransactionsPartnership Agreement as in effect on the date of this Indenture and as it may be amended, and (2) payment modified or supplemented from time to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal yeartime, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in that any such Management Agreementamendment, plus all out-of-pocket modification or supplement relating to reimbursement of the General Partner for expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect is not less favorable to the Company and its Restricted SubsidiariesSubsidiaries in any material respect than the relevant provision of the Partnership Agreement prior to such amendment, modification or supplement; and
(viii9) in the Transactionscase of contracts for the purchase or sale of refined petroleum products or other Hydrocarbons or activities or services reasonably related thereto, all transactions or other operational contracts, any such contracts that are (a) entered into in connection therewith the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with third parties or (including b) otherwise on terms not materially less favorable to the financing thereof), Company and all fees and expenses paid or payable its Restricted Subsidiaries than those that would be available in connection a transaction with the Transactionsan unrelated third party.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall Except as otherwise expressly permitted in this Agreement, the Parent Borrower will not, and shall will not permit any Material Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (transaction, including the any purchase, sale, lease or exchange of any property or the rendering of any service) , with any Affiliate other than a portfolio company of any of the Company Investors or their respective Affiliates (an “Affiliate Transaction”in the ordinary course of business and consistent with past practice) involving consideration in excess of $2,500,000 unless such transaction is (iA) the not otherwise prohibited under this Agreement, and (B) upon terms of such Affiliate Transaction are not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who which is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration Affiliate; provided that nothing contained in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction subsection 8.6 shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply toprohibit:
(ia) any Restricted Payment Transaction,
(1) the Parent Borrower or any Restricted Subsidiary from entering into, modifying, maintaining or performance of performing any employment contractconsulting, management, compensation, collective bargaining agreementbargaining, benefit plan, program benefits or arrangementemployment agreements, related trust agreement or other compensation arrangements with a current or former management member, director, officer, employee or consultant of or to the Parent Borrower or such Restricted Subsidiary or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into Parent in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings savings, or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity-equity related interests or other equity securities, to any such management members, employees, officers officers, directors or directors in the ordinary course of businessconsultants, (34) the payment of reasonable fees to directors of the Company Parent Borrower or any of its Subsidiaries or any Parent (as determined in good faith (i) approved by the Company Board of Directors of the Parent Borrower or such Subsidiaryany Parent (including the compensation committee thereof), (4ii) in an amount not in excess of $1,000,000 in the aggregate for all such directors in any transaction with an officer fiscal year, or director (iii) in the ordinary course of business not involving more than $100,000 in any one casebusiness), or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iiib) any transaction the payment of all amounts in connection with the Company, any Restricted Subsidiary this Agreement or any Receivables Entity,of the Transactions;
(ivc) the Parent Borrower or any transaction of its Restricted Subsidiaries from entering into, making payments pursuant to and otherwise performing (i) the obligations under the Contribution Agreement and (ii) an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by any Parent (provided that, if such Parent shall own any material assets other than (x) the Capital Stock of the Parent Borrower or another Parent, or (y) other assets relating to the ownership interest by such Parent in the Parent Borrower or another Parent, such liabilities shall be limited to the reasonable and proportional share, as determined by the Parent Borrower in its reasonable discretion based on the benefit therefrom to the Parent Borrower and its Subsidiaries, of such liabilities relating or allocable to the ownership interest of such Parent in the Parent Borrower or another Parent and such other related assets) or the Parent Borrower or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the Parent Borrower or any of its Subsidiaries or any Parent or any of their predecessors or successors, (C) arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved performance by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by Investors of management, consulting or financial advisory services provided to the Company Parent Borrower or any of its Subsidiaries or any Parent, (D) arising out of the fact that any indemnitee was or is a director, officer, agent, consultant or employee of the Parent Borrower or any of its Subsidiaries or any Parent, or is or was serving at the request of any such Person as a director, officer, agent, consultant or employee of another corporation, partnership, joint venture venture, trust, enterprise or similar entity,other Person or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Parent Borrower or any of its Subsidiaries or any Parent;
(viid) any issuance or sale of Capital Stock of the Parent Borrower or any Parent or capital contribution to the Parent Borrower or any Restricted Subsidiary;
(e) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the TransactionsTransaction Agreement, and (2) payment payments to CDR the Investors or any Affiliate of CDR their respective Affiliates (x) for any management, consulting, financial or advisory services, or in respect of fees financing, underwriting or placement services, or in respect of other investment banking activities (if any), pursuant to consulting or other agreements of up to $2.0 million 5,000,000 in any fiscal year, and fees (y) in connection with any acquisition, disposition, merger, amalgamation, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Transaction Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses expenses, indemnifications and contributions incurred by CDR or any such Affiliate in connection with its such services or activities;
(f) the execution, delivery and performance of management consultingagreements or instruments as set forth on Schedule 8.6;
(g) (i) any transaction (x) among any of the Loan Parties, monitoring(y) among any of the Non-Loan Parties, financial advisory or other services with respect to (z) among any of the Company Loan Parties and its the Restricted Subsidiaries, andin the case of this clause (z) in the ordinary course of business and consistent with past practice, (ii) any Restricted Payment Transaction, (iii) any transaction permitted by subsection 8.1(c) or 8.1(f) and (iv) any transaction permitted by subsection 8.3;
(viiih) the Transactions, Transactions and all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of International Paper, the Holding Parent, the Investors and their Affiliates; and
(i) any transaction in the ordinary course of business and consistent with past practice between the Parent Borrower or any Restricted Subsidiary and any Affiliate of the Parent Borrower controlled by the Parent Borrower that is a joint venture or similar entity.
Appears in 2 contracts
Sources: Abl Credit Agreement (Veritiv Corp), Abl Credit Agreement (Veritiv Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”) unless "): (i) the on terms of such Affiliate Transaction that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and (ii) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 15 million, the terms of such Affiliate Transaction have is not in writing and has not been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a)In addition, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority involves an amount in excess of the Disinterested Directors or (y) in the event there are no Disinterested Directors$30 million, a fairness opinion is must be provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionfirm.
(b) The provisions of Section 412(a4.07(a) shall not apply to:
prohibit: (i) any Restricted Payment Transaction,
or Permitted Investment permitted to be paid pursuant to Section 4.04, (1ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the entering intofunding of, maintaining or performance indemnities provided under, employment arrangements, stock options and stock ownership plans approved by the Board of any employment contractDirectors, collective bargaining agreement, benefit plan, program (iii) loans or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into advances to employees in the ordinary course of businessbusiness in accordance with past practices of the Company, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsbut in any event not to exceed $2 million in the aggregate outstanding at any one time, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3iv) the payment of reasonable fees to to, and indemnities provided on behalf of, directors of the Company or any of and its Subsidiaries (as determined in good faith by who are not employees of the Company or such Subsidiary)its Subsidiaries, (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any and a Restricted Subsidiary or between Restricted Subsidiaries or (vi)arrangements in existence as of the Effective Date with Persons that employ staff providers and any Affiliate which provide service exclusively on behalf of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the executionand its Subsidiaries, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect which arrangements are not material to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSubsidiaries taken as a whole.
Appears in 2 contracts
Sources: Indenture (Magellan Health Services Inc), Indenture (Magellan Health Services Inc)
Limitation on Transactions with Affiliates. (a) The Company Issuers shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) with any Holder (or any Affiliate of such Holder) of 10% or more of any class of Capital Stock of the Parent or with any Affiliate of the Company (Parent, an “Affiliate Transaction”) unless (i) the Issuer or any Restricted Subsidiary, in each case involving consideration in excess of $15,000,000, except upon terms of such Affiliate Transaction that are not materially less favorable to the Company Issuers or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s length transaction with a Person who that is not such a Holder or an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionAffiliate.
(b) The provisions of limitation set forth in Section 412(a5.12(a) does not limit, and shall not apply to:
(i1) transactions (A) approved by a majority of the disinterested directors of the Board of Directors of the Parent, or where no such disinterested directors exist, by unanimous approval of the directors of the Board of Directors of the Parent or (B) for which the Parent or any Restricted Payment Transaction,Subsidiary delivers to the Trustee a written opinion of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Parent or such Restricted Subsidiary from a financial point of view;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment any transaction solely between an Issuer and any of compensation, performance of indemnification its Restricted Subsidiaries or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, solely between Restricted Subsidiaries;
(3) the payment of reasonable fees to directors and compensation (including through the issuance of the Company Capital Stock) to, and indemnification and similar arrangements on behalf of, current, former or future directors, officers, employees or consultants of Parent or any Restricted Subsidiary of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), Parent;
(4) the issuance or sale of Capital Stock (other than Disqualified Stock) of an Issuer;
(5) any transaction Restricted Payments not prohibited by Section 5.09 and Investments constituting Permitted Investments;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the date of this Indenture, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Issuers and the Restricted Subsidiaries at the time executed than the original agreement or arrangements as in effect on the date of this Indenture;
(7) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by an Issuer or any Restricted Subsidiary with current, former or future officers and employees of the Parent or an officer Issuer or director such Restricted Subsidiary and the payment of compensation to officers and employees of the Parent, an Issuer or any Restricted Subsidiary (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,business;
(iii) any transaction with 8) loans and advances to officers and employees of the CompanyParent, an Issuer or any Restricted Subsidiary or any Receivables Entity,
guarantees in respect thereof (iv) any transaction arising out or cancellation of agreements such loans, advances or instruments in existence on the Issue Dateguarantees), for bona fide business purposes, including for reasonable moving and any payments relocation, entertainment and travel expenses and similar expenses, made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to business;
(9) transactions with a Person that is an Affiliate of the Company Parent or an Issuer solely because the relevant Restricted Subsidiary than those that could be obtained at the time in a Parent or an Issuer, directly or indirectly, owns Capital Stock of, or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of the Company,such transaction that becomes an Affiliate as a result of such transaction; or
(vi11) the entering into or amending of any tax sharing, allocation or similar agreement and any payments thereunder.
(c) Notwithstanding Section 5.12(a) and 5.12(b), any transaction in the ordinary course or series of business, or approved related transactions covered by a majority of the Board of Directors, between the Company or any Restricted Subsidiary Section 5.12(a) and any Affiliate of the Company controlled not covered by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and clauses (2) payment to CDR or any Affiliate through (11) of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viiiSection 5.12(b) the Transactions, all transactions aggregate amount of which exceeds $30,000,000 in connection therewith value shall be approved or determined to be fair in the manner provided for in Section 5.12(b)(1)(A) or (including the financing thereofB), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (MPT Operating Partnership, L.P.), Ninth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease or exchange of any property or the rendering of any serviceservices) with any Affiliate of the Company (an “"Affiliate Transaction”") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries; or (ii) such Affiliate Transaction is entered into in good faith and the terms of such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be. In any Affiliate Transaction involving an amount or having a value in excess of $5,000,000 which is not materially less favorable permitted under clause (i) above, the Company must obtain a Board Resolution of the Board of Directors determining that such Affiliate Transaction complies with clause (ii) above. In transactions with a value in excess of $10,000,000 which are not permitted under clause (i) above, the Company must obtain a written opinion as to the fairness of such a transaction, from a financial point of view to the Company or such Restricted Subsidiary, as the case may be, than those from an independent investment banking firm.
(b) Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph will not apply to: (i) Restricted Payments that could be obtained at the time in a transaction with a Person who is are not such an Affiliate and prohibited under Section 4.08; (ii) if such Affiliate Transaction involves aggregate consideration transactions permitted by, and complying with, the provisions described under Section 5.01; (iii) transactions in excess the ordinary course of $15.0 millionbusiness (including expense advances) between the Company or any of its Restricted Subsidiaries or Unrestricted Subsidiaries, on the one hand, and any employee thereof, on the other hand; (iv) employment contracts existing on the Issue Date and employment contracts approved by the Board of Directors of the Company the terms of such Affiliate Transaction have been which are consistent with past practice; (v) the granting and performance of registration rights for shares of Capital Stock of the Company under a written registration rights agreement approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority directors of the Disinterested Directors or (y) in the event there Company that are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm disinterested with respect to such Affiliate Transaction.
transaction; (bvi) The provisions transactions with Affiliates solely in their capacity as holders of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining Indebtedness or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors Capital Stock of the Company or any of its Restricted Subsidiaries or Unrestricted Subsidiaries, where such Affiliates are treated no more favorably than holders of such Indebtedness or such Capital Stock generally; (vii) any Permitted Investments; (viii) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary of the Company as determined in good faith by the Company's Board of Directors; (ix) transactions exclusively between or among the Company or and any of its Subsidiaries, provided such Subsidiary), transactions are not otherwise prohibited by this Indenture; (4x) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction with an officer contemplated thereby (including pursuant to any amendment thereto) or director in the ordinary course of business not involving more than $100,000 in any one case, replacement agreement thereto so long as any such amendment or (5) Management Advances and payments replacement agreement is not more disadvantageous to the holders of the Securities in any material respect thereof,
(iii) any transaction with than the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments original agreement as in existence effect on the Issue Date, and any payments made pursuant thereto,
; (vxi) any transaction payment, issuance of securities or other payments, awards or grants, in the ordinary course of business on terms not materially less favorable to the Company cash or otherwise, pursuant to, or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of businessfunding of, or employment arrangements and Plans approved by a majority of the Board of Directors; (xii) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries (or any adjustment or amendment thereto) pursuant to Plans and employment contracts and stock option, between stock bonus, restricted stock and similar agreements approved by the Board of Directors; (xiii) loans or advances to officers, directors or employees of the Company or its Restricted Subsidiaries not in excess of $5,000,000 at any Restricted Subsidiary one time outstanding; and any Affiliate (xiv) transactions, including, without limitation, the repurchase of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the executionCompany's Common Stock, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses entered into in connection with the Transactions, Recapitalization and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable therefor as described in connection with the TransactionsOffering Memorandum.
Appears in 2 contracts
Sources: Indenture (Samsonite Corp/Fl), Indenture (Samsonite Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into or conduct suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, transfer, disposition, purchase, saleexchange or lease of assets, lease or exchange of any property or services), other than as provided for in the rendering of any service) with Operative Agreements, with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) Partnership, unless (i1) such transaction or series of related transactions is between the Partnership and its Wholly-Owned Restricted Subsidiaries or between two Wholly-Owned Restricted Subsidiaries or (2) (a) such transaction or series of related transactions is on terms of such Affiliate Transaction that are not materially no less favorable to the Company Partnership or such Restricted Subsidiary, as the case may be, than those that could be which would have been obtained at the time in a comparable transaction with at such time from Persons who are not Affiliates of the Partnership or a Person who is not such an Affiliate Restricted Subsidiary and (iib) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate consideration in excess of payments or value equal to or greater than $15.0 15 million, the terms Partnership shall have delivered an Officers’ Certificate to the Trustee certifying that such transaction or series of transactions complies with the preceding clause (a) and that such Affiliate Transaction have transaction or series of transactions has been approved by a majority of the Disinterested Directors. For purposes Board of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied Directors of the requirements set forth in this Section 412(a) if General Partner (x) such Affiliate Transaction is approved by including a majority of the Disinterested Directors Directors); provided, however, that this Section 10.11 will not restrict the Partnership, any Restricted Subsidiary or the General Partner from entering into (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(iA) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit planstock option agreement, program or arrangement, related trust restricted stock agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors agreement in the ordinary course of business, (3B) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith transactions permitted by the Company or such Subsidiary), provisions of this Indenture set forth in Sections 10.10 hereof and (4C) any transaction with an officer or director transactions in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with reinsuring the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all outself-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory insurance programs or other services with respect to similar forms of retained insurable risks of the Company retail propane business operated by the Partnership, its Subsidiaries and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsAffiliates.
Appears in 2 contracts
Sources: Indenture (Amerigas Finance Corp), Indenture (Amerigas Finance Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly conduct any business or indirectly, enter into or conduct any transaction or series of related similar transactions in an aggregate amount in excess of $100,000 (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company or any legal or beneficial owner of 5% or more of any class of Capital Stock of the Company or with an Affiliate of any such owner (any such business, transaction or series of similar transactions, an “"Affiliate Transaction”") unless (i) the terms of such Affiliate Transaction are not materially less favorable are: (i) set forth in writing, (ii) fair to the Company or such Restricted Subsidiaryand its Subsidiaries from a financial point of view (as determined by the Board of Directors), as (iii) in the case may be, of any Affiliate Transaction (other than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (iiTransaction with an Unrestricted Subsidiary of the Company) if such Affiliate Transaction involves in an aggregate consideration amount in excess of $15.0 500,000, the disinterested members of the Board of Directors have determined in good faith that the criteria set forth in clause (ii) are satisfied and (iv) in the case of any Affiliate Transaction involving an Unrestricted Subsidiary of the Company in an aggregate amount in excess of $2.0 million, the terms of such Affiliate Transaction have been approved by a majority members of the Disinterested Directors. For purposes Board of this Section 412(a), any Affiliate Transaction shall be deemed to Directors have satisfied determined in good faith that the requirements criteria set forth in this Section 412(aclause (ii) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) satisfied. This covenant shall not apply to:
prohibit: (i) any Restricted Payment Transaction,
permitted under Section 4.05, (1ii) any Issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant so, or the entering intofunding of, maintaining employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) loans or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into advances to employees in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ; (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3iv) the payment of reasonable fees to directors of the Company or any of and its Subsidiaries (as determined in good faith by who are not employees of the Company or such Subsidiary)its Subsidiaries, (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to between the Company and a Wholly Owned Subsidiary or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
between Wholly Owned Subsidiaries or (vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled Investment represented by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions▇▇▇▇▇ Note.
Appears in 2 contracts
Sources: Indenture (Petroleum Heat & Power Co Inc), Indenture (Petroleum Heat & Power Co Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the Issuer, except upon fair and reasonable terms of such Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, Issuer than those that could be obtained obtained, at the time of such transaction or at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person who that is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 millionAffiliate, provided, that the terms of such Affiliate Transaction have been approved by a majority of foregoing restriction does not limit or apply to the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tofollowing:
(i) any Restricted Payment Transaction,transaction in connection with the establishment of the Issuer, its initial capitalization and the acquisition of its initial Portfolio or pursuant to the terms of the Operative Agreements;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3ii) the payment of reasonable and customary regular fees to directors to, and the provision of reasonable and customary liability insurance in respect of, the managers/members of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,Issuer;
(iii) any transaction payments on or with respect to the Securities or otherwise in accordance with the Company, any Restricted Subsidiary or any Receivables Entity,Flow of Funds;
(iv) any transaction arising out acquisition of agreements Additional Railcars or instruments in existence on the Issue Date, and any payments made pursuant thereto,Permitted Railcar Acquisition or Permitted Railcar Disposition complying with Section 5.03;
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate payments of the Company,types referred to in clause (i) or (ii) of Section 5.02(d) and not prohibited thereunder;
(vi) any the sale of Portfolio Railcars as part of a single transaction providing for the redemption or defeasance of Securities in accordance with the ordinary course terms of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,this Master Indenture;
(vii) the execution, delivery and performance sale of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect Class E Certificates to the Company and its Restricted Subsidiaries, andInitial Holder;
(viii) the Transactions, all transactions in connection therewith sale of the Subordinated Notes to the Member; or
(including ix) the financing thereof), and all payment of fees and expenses paid to TILC as contemplated by any applicable Service Provider Agreement.
(i) Limitation on the Issuance, Delivery and Sale of Equity Interests. Except as expressly permitted by its LLC Agreement, the Issuer will not (1) issue, deliver or payable in connection sell any Stock or (2) sell, directly or indirectly, or issue, deliver or sell, any Stock, except for the following:
(A) issuances or sales of any additional membership interests to the Member (the “Permitted Holder”); or
(B) contributions, including Capital Contributions, by the Permitted Holder of funds to the Issuer (x) with which to effect a redemption or discharge of the Securities upon any acceleration of the Securities or (y) as otherwise contemplated by this Master Indenture, an Asset Transfer Agreement or the LLC Agreement. In accordance with the TransactionsLLC Agreement, no issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer (or other interest in the Issuer treated as equity for U.S. federal income tax purposes) will be effective, and any such issuance, delivery, sale transfer or other disposition will be void ab initio, if it would result in the Issuer being classified as an association (or a publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes or if the Issuer would be required to withhold on any distributions or allocations to its equity holders under Sections 871, 881, 1441, 1442, 1445, 1446, 1471 or 1472 of the Code. In addition, any such issuance, delivery, sale, transfer or other disposition of any membership interest in the Issuer, other than to a Permitted Holder, will require Rating Agency Confirmation.
Appears in 2 contracts
Sources: Master Indenture (Trinity Industries Inc), Master Indenture (Trinity Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into into, suffer to exist, renew or conduct extend any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease or exchange of any property or the rendering of any serviceservices) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the such transaction or series of transactions is on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be obtained obtainable at the such time in a comparable transaction in arm's-length dealings with a Person who is not such an Affiliate unrelated third party, and (ii) if such Affiliate Transaction involves the Company delivers to the Trustee (A) with respect to any transaction or series of transactions involving aggregate consideration payments in excess of $15.0 500,000, an Officers' Certificate certifying that such transaction or series of related transactions complies with clause (i) above and (B) with respect to any transaction or series of transactions involving aggregate payments in excess of $2.0 million, the terms an Officers' Certificate certifying that such transaction or series of such Affiliate Transaction have related transactions has been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if Board of Directors of the Company (x) such Affiliate Transaction is and approved by a majority of the Disinterested Independent Directors or (y) or, in the event there are no Disinterested Directorsis only one Independent Director, by such Independent Director), and (iii) with respect to any transaction or series of transactions involving aggregate payments in excess of $5.0 million, an opinion as to the fairness to the Company from a fairness opinion is provided financial point of view issued by a nationally recognized appraisal or an investment banking firm with respect to such Affiliate Transactionof national standing.
(b) The provisions of Section 412(a4.14(a) shall will not apply to:
to (i) employment agreements or compensation or employee benefit arrangements with any Restricted Payment Transaction,
(1) officer, director or employee of the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement Company or any other similar arrangement for or with any employee, officer or director heretofore or hereafter of its Restricted Subsidiaries entered into in the ordinary course of businessbusiness (including customary benefits thereunder and including reimbursement or advancement of out-of-pocket expenses, including vacation, health, and director's and officer's liability insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, ); (2ii) the payment of compensationexpense sharing arrangement between the Company and Weinberg Capital Corporation regarding the expenses incurred with resp▇▇▇ ▇▇ ▇he Company's Cleveland, performance of indemnification Ohio headquarters; (iii) any transaction entered into by or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of among the Company or any one of its Restricted Subsidiaries with one or more Restricted Subsidiaries of the Company; (as determined in good faith by the Company or such Subsidiary), (4iv) any transaction permitted by Section 4.11(b); (v) transactions permitted by, and complying with, Article Five; and (vi) transactions with an officer suppliers or director other purchases or sales of goods or services, in each case in the ordinary course of business not involving more than $100,000 (including, without limitation, pursuant to joint venture agreements) and otherwise in any one casecompliance with the terms of this Indenture which, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the reasonable determination of the Board of Directors of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business are on terms not materially no less favorable to the Company or the relevant its Restricted Subsidiary Subsidiaries than those that could be reasonably have been obtained at the such time in a transaction with a Person who is not from an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsunaffiliated party.
Appears in 2 contracts
Sources: Indenture (Logan Metal Stampings Inc), Indenture (Hawk Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent and the Issuers shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, enter into into, renew or conduct extend any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or assets, or the rendering of any service) with any Holder (or any Affiliate of such Holder) of 10% or more of any class of Capital Stock of the Parent or with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the Parent or any Restricted Subsidiary, in each case involving consideration in excess of $5,000,000, except upon terms of such Affiliate Transaction that are not materially less favorable to the Company Parent or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s length transaction with a Person who that is not such a Holder or an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionAffiliate.
(b) The provisions of limitation set forth in Section 412(a4.12(a) does not limit, and shall not apply to:
(i1) transactions (A) approved by a majority of the disinterested directors of the Board of Directors of the Parent or (B) for which the Parent or any Restricted Payment Transaction,Subsidiary delivers to the Trustee a written opinion of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Parent or such Restricted Subsidiary from a financial point of view;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment any transaction solely between Parent and an Issuer, solely between Parent or an Issuer and any of compensation, performance of indemnification its Restricted Subsidiaries or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, solely between Restricted Subsidiaries;
(3) the payment of reasonable fees to directors and compensation (including through the issuance of the Company Capital Stock) to, and indemnification and similar arrangements on behalf of, current, former or future directors, officers, employees or consultants of Parent or any of its Subsidiaries (as determined in good faith by the Company or such Restricted Subsidiary), ;
(4) any transaction with an officer or director in the ordinary course of business Restricted Payment not involving more than $100,000 in any one case, or prohibited by Section 4.09 and Investments constituting Permitted Investments;
(5) Management Advances and payments in respect thereof,
(iii) any transaction with the Companycontracts, any Restricted Subsidiary instruments or any Receivables Entity,
(iv) any transaction arising out of other agreements or instruments arrangements in existence each case as in effect on the Issue Date, and any payments made transactions pursuant thereto,thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to Parent and the Restricted Subsidiaries at the time executed than the original agreement or arrangements as in effect on the Issue Date;
(v6) any transaction employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by Parent or any Restricted Subsidiary with current, former or future officers and employees of the Parent or such Restricted Subsidiary and the payment of compensation to officers and employees of the Parent or any Restricted Subsidiary (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business on terms not materially less favorable business;
(7) loans and advances to officers and employees of the Company Parent or the relevant any Restricted Subsidiary than those or Guarantees in respect thereof (or cancellation of such loans, advances or Guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business;
(8) transactions with a Person that could be obtained at is an Affiliate of the time in Parent or an Issuer solely because the Parent or a Restricted Subsidiary, directly or indirectly, owns Capital Stock of, or controls such Person;
(9) any transaction with a Person who is not an Affiliate immediately before the consummation of the Company,such transaction that becomes an Affiliate as a result of such transaction;
(vi10) the entering into or amending of any tax sharing, allocation or similar agreement and any payments thereunder;
(11) any transaction described in the ordinary course of business, or approved by a majority clause (R) of the Board definition of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,Asset Sale; or
(vii12) the executionissuance and sale of Capital Stock (other than Disqualified Stock) of Parent.
(c) Notwithstanding Section 4.12(a) and 4.12(b), delivery any transaction or series of related transactions covered by Section 4.12(a) and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and not covered by clauses (2) payment through (12) of Section 4.12(b):
(i) the aggregate amount of which exceeds $10,000,000 in value must be approved or determined to CDR be fair in the manner provided for in Section 4.12(b)(1)(A) or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, (B); and
(viiiii) the Transactions, all transactions aggregate amount of which exceeds $25,000,000 in connection therewith (including value must be determined to be fair in the financing thereofmanner provided for in Section 4.12(b)(1)(B), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) such Affiliate Transaction is entered into in good faith and the terms of such Affiliate Transaction are not materially less favorable are, taken as a whole, fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 25.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness the Company or such Restricted Subsidiary receives an opinion is provided by in customary form from a nationally recognized appraisal or investment banking firm with respect to the effect that such Affiliate TransactionTransaction is fair to the Company or such Restricted Subsidiary from a financial point of view.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), or (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with with, including an investment in, the Company, any Restricted Subsidiary Subsidiary, or any Receivables Special Purpose Entity,;
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate and listed on Exhibit G hereto (other than any Tax Sharing Agreement referred to in Section 412(b)(vi)), and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,;
(viivi) the execution, delivery and performance of any Tax Sharing Agreement and Agreement;
(vii) any Management Agreements, including issuance or sale of Capital Stock (1other than Disqualified Stock) payment of the Company or capital contribution to CDR the Company;
(viii) transactions with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any Affiliate of CDR of a fee of up to $18.0 million plus outits Subsidiaries, where such Affiliates hold less Indebtedness or Capital Stock than non-ofAffiliates and such Affiliates receive the same consideration as non-pocket expenses Affiliates in connection with the Transactions, and such transactions;
(2ix) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection transaction with any acquisition, merger, recapitalization Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; and
(x) transactions exclusively between or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to among the Company and any of its Restricted Subsidiaries, and
(viii) the Transactions, all provided such transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsare not otherwise prohibited by this Indenture.
Appears in 2 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, a Person who is not an Affiliate resolution of the Company,Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(vi1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of (a) corporate sharing agreements that are with Crosstex Energy, Inc. and its Subsidiaries with respect to general overhead and other administrative matters and (b) other agreements that are identified in Schedule I to this Indenture, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company in any material respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the date of this Indenture and as it may be amended, provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment; and
(9) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or approved activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsthird parties.
Appears in 2 contracts
Sources: Indenture (Crosstex Energy Lp), Indenture (Crosstex Energy Lp)
Limitation on Transactions with Affiliates. (a) The Company shall not, not and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, enter into or conduct any in one transaction or a series of related transactions (including the purchasetransactions, salesell, lease lease, transfer or exchange otherwise dispose of any of its properties or assets to, or purchase any property or assets from or enter into any contract, agreement, understanding, loan advance or guarantee with, or for the rendering of any service) with benefit of, any Affiliate (each of the Company (foregoing, an “Affiliate Transaction”) ), unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there on terms that are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction (or series of related transactions) involving aggregate payments in excess of $5.0 million but less than $10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and a Secretary’s Certificate which sets forth and authenticates a resolution that has been adopted by a vote of a majority of the Independent Directors approving such Affiliate Transaction or, if at the time fewer than four Independent Directors are then in office, a transaction with Secretary’s Certificate which sets forth and authenticates a Person who is not an Affiliate of resolution that has been adopted unanimously by the Company,
’s Board of Directors and (vib) with respect to any Affiliate Transaction (or series of related transactions) involving aggregate payments of $10.0 million or more, the certificates described in the preceding clause (a) and an opinion as to the fairness to the Company or such Subsidiary from a financial point of view issued by an Independent Financial Advisor; provided, however, that (u) the Management Agreements, (v) any transaction employment agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business, or approved by a majority business and consistent with the past practice of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of such Subsidiary, (w) transactions exclusively between or among the Company controlled by the Company that is a joint venture or similar entity,
and/or its Subsidiaries, (viix) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any per fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management year pursuant to the Servicing Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect (y) payments to Parent under the Tax Sharing Agreement and (z) transactions pursuant to the Asphalt Agreements shall not be deemed to be Affiliate Transactions. Notwithstanding the foregoing proviso, the Company shall not and shall not permit any of its Restricted SubsidiariesSubsidiaries to pay any of its employees total annual compensation in excess of $350,000 unless (a) such amount of compensation has been approved by a vote of a majority of the Independent Directors, and
or (viiib) such employee’s total annual compensation in effect on the TransactionsIssue Date exceeded $350,000. Any increase in total compensation over and above the amount previously approved in the case of clause (a) or the employee’s total annual compensation on the Issue Date in the case of clause (b) shall be approved by a vote of a majority of the Independent Directors, all transactions other than an increase at the end of any year in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with amount of total compensation by an amount equal to the TransactionsIndex Amount for such year.
Appears in 2 contracts
Sources: Indenture (United Refining Co), Indenture (United Refining Co)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with a an unrelated Person who is not an Affiliate or, if in the good faith judgment of the Board of Directors of the Company,, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(vi2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any transaction employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, ;
(2) transactions between or approved by a majority among any of the Board of Directors, between the Company or any and its Restricted Subsidiary and any Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company controlled by solely because the Company that is a joint venture or similar entity,owns an Equity Interest in such Person;
(vii4) transactions effected in accordance with the executionterms of agreements that are in effect on the Initial Issuance Date, delivery and performance any amendment or replacement of any Tax Sharing Agreement of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any Management Agreementsmaterial respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including (1) payment to CDR reimbursement or any Affiliate advancement of CDR of a fee of up to $18.0 million plus out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(8) payments to the General Partner with respect to reimbursement for expenses in connection accordance with the TransactionsPartnership Agreement as in effect on the Initial Issuance Date and as it may be amended, and provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment; and
(29) payment in the case of contracts for the purchase or sale of Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to CDR those contained in similar contracts entered into by the Company or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection its Restricted Subsidiaries with any acquisition, merger, recapitalization third parties or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions Subsidiaries than those that would be available in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection a transaction with the Transactionsan unrelated third party.
Appears in 2 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or conduct any transaction or series of related transactions (including with or for the purchase, sale, lease or exchange benefit of any property Affiliate, any holder of 5% or the rendering more of any service) with class of Equity Interests or any Affiliate officer, director or employee of the Company or any Restricted Subsidiary (each, an “"Affiliate Transaction”) "), unless (i) the terms of such Affiliate Transaction is on terms that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be obtained at the such time in a comparable transaction with a Person who is not an unaffiliated third party. For any such an Affiliate and (ii) if such Affiliate Transaction transaction that involves aggregate consideration value in excess of $15.0 5.0 million, the terms Company shall deliver to the 48 -42- Trustee an Officers' Certificate stating that a majority of the Disinterested Directors has determined that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution delivered to the Trustee. For any such transaction that involves value in excess of $12.5 million, the Company shall also obtain a written opinion from an Independent Financial Advisor to the effect that such transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries; (ii) customary directors' fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including customary benefits thereunder); (iii) transactions pursuant to agreements in effect on the Issue Date, as such agreements are in effect on the Issue Date or as thereafter amended or supplemented in a manner not adverse to the Holders; (iv) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business and consistent with past business practices; (v) any transactions between the Company or any Restricted Subsidiary, on the one hand, and any Affiliate Transaction have been of the Company engaged primarily in a Telecommunications Business, on the other hand, (x) in the ordinary course of business and consistent with commercially reasonable practices or (y) approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
; (vi) any transaction payment pursuant to any tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes; provided that such payment is not greater than that which the Company would be required to pay as a stand-alone taxpayer; (vii) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; and (viii) payment of dividends in the ordinary course respect of business, or approved by a majority Equity Interests of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionspermitted under Section 4.11.
Appears in 2 contracts
Sources: Indenture (Hermes Europe Railtel B V), Indenture (Global Telesystems Group Inc)
Limitation on Transactions with Affiliates. (a) The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) , with any Affiliate of the Company Borrower unless such transaction is (an “Affiliate Transaction”a) unless otherwise permitted under this Agreement, and (ib) the upon terms of such Affiliate Transaction are not materially no less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time it would obtain in a comparable arm’s length transaction with a Person who which is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration Affiliate; provided that nothing contained in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction subsection 8.11 shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply toprohibit:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries (as determined in good faith by the Company from entering into or such Subsidiary)performing any consulting, (4) any transaction management or employment agreements or other compensation arrangements with an a director, officer or director employee of Holding or any of its Subsidiaries, provided that the annual aggregate base compensation with respect to any such director, in its capacity as such, is not in excess of $500,000;
(ii) the ordinary course payment of business not involving more than $100,000 transaction expenses in any one case, or (5) Management Advances connection with this Agreement and payments in respect thereof,the other transactions related hereto and thereto;
(iii) any transaction with the Company, any Restricted Subsidiary Borrower or any Receivables Entity,of its Subsidiaries from entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of each person who becomes a director, officer, agent or employee of Holding, the Borrower or any of their respective Subsidiaries, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by Holding, the Borrower or any of their Subsidiaries, (B) incurred to third parties for any action or failure to act of Holding, the Borrower or any of their Subsidiaries, predecessors or successors, (C) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of Holding, the Borrower or any of their Subsidiaries, or is or was serving at the request of any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (D) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of Holding, the Borrower or any of their Subsidiaries;
(iv) the Borrower or any transaction arising out of its Subsidiaries from performing any agreements or instruments in existence commitments with or to any Affiliate existing on the Issue Date, Closing Date and any payments made pursuant thereto,described on Schedule 8.11(v);
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company permitted under subsection 8.3(k), 8.4(c), 8.4(d), 8.4(k), 8.5, 8.7, 8.9(e), or the relevant Restricted Subsidiary than those that could be obtained at the time in a 8.9(k), or any transaction with a Person who is not an Affiliate Wholly Owned Subsidiary of the Company,Borrower; or
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of its Subsidiaries from performing its obligations under the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement, Credit and Guarantee Agreement (Sirva Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless on terms (i) the terms of such Affiliate Transaction that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and (ii) if that, in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million10,000,000, the terms of such Affiliate Transaction have not been approved by a majority of the Disinterested Directorsmembers of the Board of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. For purposes of this Section 412(a)paragraph, any transaction or series of related transactions with any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) paragraph if (x) such Affiliate Transaction transaction or series of related transactions is approved by a majority of the Disinterested members of the Board of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction, or (y) in the event there are no Disinterested Directorssuch directors without any such interest, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactiontransaction or series of related transactions.
(b) The provisions of Section 412(a4.07(a) shall not apply to:
: (i) any Restricted Payment Transactionpermitted pursuant to, or any other payment or transaction permitted by, Section 4.04 or any Indebtedness permitted to be Incurred pursuant to Section 4.03(b)(ix), or any payments in respect thereof, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3iii) the payment of reasonable fees to directors of the Company or any of and its Subsidiaries (as determined in good faith by who are not employees of the Company or such Subsidiary)its Subsidiaries, (4iv) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, (v) any transaction with an officer or director member of the board of directors of the Company, RIC Holding or Holding not covered by clause (ii) above entered into in the ordinary course of business (x) involving compensation or employee benefit arrangements or (y) not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(ivvi) any transaction arising out of agreements or instruments as in existence on the 1997 Notes Issue Date, including but not limited to the Indemnification Agreement and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR CD&R or any Affiliate of CDR CD&R of a fee of up fees in an aggregate amount not to exceed $18.0 million 1,000,000 in any fiscal year plus all reasonable out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses expense incurred by CDR CD&R or any such Affiliate in connection with its performance of management consulting, monitoring, monitoring and financial advisory or other services with respect to Holding, RIC Holding, the Company and its Restricted Subsidiaries, and
and (viii) loans and advances (or guarantees in respect thereof and payments thereunder) made to officers or employees of Holding, RIC Holding, the TransactionsCompany or any Restricted Subsidiary, all transactions in connection therewith or guarantees made on their behalf (including the financing thereofand payments thereunder), (A) in respect of travel, entertainment and all fees and moving-related expenses paid or payable incurred in the ordinary course of business, (B) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility and (C) in the Transactionsordinary course of business not exceeding $2,500,000 in the aggregate outstanding at any time.
Appears in 2 contracts
Sources: Indenture (Riverwood Holding Inc), Indenture (Riverwood Holding Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 40.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer officer, director or director consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company Company, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, case or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, and/or one or any Receivables Entitymore Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management AgreementsAgreement, including and (12) payment payments to CDR CD&R, ▇▇▇▇ Capital or Carlyle or any Affiliate of CDR their respective Affiliates (w) of a fee of up to $18.0 million plus any and all out-of-pocket expenses in connection with the Transactions, and (2x) payment for any management consulting, financial advisory, financing, underwriting or placement services or in respect of other investment banking activities pursuant to CDR or any Affiliate of CDR of fees of up to the Management Agreements, provided that payments under this clause (x) shall not exceed $2.0 7.5 million in any fiscal per calendar year, and fees (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), the execution, delivery and performance of all agreements and instruments in connection with the Transactions, and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or Junior Capital or any capital contribution to the Company,
(x) any amendment, supplement, waiver or other modification to or of the Senior Unsecured Notes, the Senior Unsecured Indenture or any related agreements, documents and instruments, or any of the terms and provisions of any thereof, to provide for the payment of interest in cash instead of in additional principal, or in additional principal instead of in cash, in each case in whole or in part, and
(xi) any investment by any Investor in securities of the Company or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 2 contracts
Sources: Indenture (Hd Supply, Inc.), Indenture (Hd Supply, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $50.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)8.6, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) 8.6 if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a8.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Parent Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Parent Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Parent Borrower, such Subsidiary or such SubsidiaryParent, in each case), (4) any transaction with an officer or director of the Parent Borrower or any of its Subsidiaries or any Parent in the ordinary course of business (x) not involving more than $100,000 1,000,000 in any one casecase or (y) approved by a majority of the Board of Directors, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyParent Borrower, any one or more Restricted Subsidiary Subsidiaries or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date (other than any Tax Sharing Agreement referred to in Section 8.6(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Parent Borrower and its Restricted Subsidiaries as determined in good faith by the Parent Borrower, or are not materially less favorable to the Company Parent Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyParent Borrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Parent Borrower or any Restricted Subsidiary and any Affiliate of the Company Parent Borrower controlled by the Company Parent Borrower that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and,
(viii) the Transactions, Spin-Off Transactions and all transactions in connection therewith (including the financing thereof), Spin-Off Transaction Agreements) and all fees and expenses paid or payable in connection with therewith, and
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the TransactionsParent Borrower or any Parent or capital contribution to the Parent Borrower or any Restricted Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Hertz Global Holdings, Inc), Credit Agreement
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease or exchange of any property or the rendering of any serviceservices) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i1) the such transaction or series of transactions is on terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be obtained obtainable at the such time in a comparable transaction in arm's-length dealings with a Person who is not such an Affiliate unrelated third party, and (ii2) if such Affiliate Transaction involves the Company delivers to the Trustee (a) with respect to any transaction or series of transactions involving aggregate consideration payments in excess of $15.0 1,000,000, an Officers' Certificate certifying that such transaction or series of related transactions complies with clause (1) above and (b) with respect to any transaction or series of transactions involving aggregate payments in excess of $2.0 million, the terms an Officers' Certificate certifying that such transaction or series of such Affiliate Transaction have related transactions has been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if Board of Directors of the Company (x) such Affiliate Transaction is and approved by a majority of the Disinterested Independent Directors or (y) or, in the event there are no Disinterested Directorsis only one Independent Director, by such Independent Director), and (c) with respect to any transaction or series of transactions involving aggregate payments in excess of $10.0 million, an opinion as to the fairness to the Company from a fairness opinion is provided financial point of view issued by a nationally recognized appraisal or an investment banking firm with respect to such Affiliate Transactionof national standing.
(b) The provisions of Section 412(a4.14(a) shall will not apply to:
to (i) employment agreements or compensation or employee benefit arrangements with any Restricted Payment Transaction,
(1) officer, director or employee of the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement Company or any other similar arrangement for or with any employee, officer or director heretofore or hereafter of its Restricted Subsidiaries entered into in the ordinary course of businessbusiness (including customary benefits thereunder and including reimbursement or advancement of out-of-pocket expenses, including vacation, health, and director's and officer's liability insurance, deferred compensation, severance, retirement, savings ); (ii) any transaction entered into by or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of among the Company or any one of its Restricted Subsidiaries (as determined in good faith by with one or more Restricted Subsidiaries of the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
Company; (iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
permitted by Section 4.11(b); and (iv) any transaction arising out of agreements or instruments in existence on the Issue Datetransactions permitted by, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of businesscomplying with, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsArticle Five.
Appears in 2 contracts
Sources: Indenture (Icn Pharmaceuticals Inc), Indenture (Icn Pharmaceuticals Inc)
Limitation on Transactions with Affiliates. (a) The Company DIMAC Holdings shall not, and shall not permit any cause each of its Restricted Subsidiary toSubsidiaries to not, directly or indirectly, enter into or conduct permit to exist any transaction or series of related transactions that are similar or part of a common plan (including including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company their respective Affiliates (each an “Affiliate Transaction”) "AFFILIATE TRANSACTION"), unless (i) the terms of such Affiliate Transaction are not materially no less favorable to DIMAC Holdings or the Company or such applicable Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate, (ii) if in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 million1,000,000, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved Board of Directors of DIMAC Holdings and by a majority of the Disinterested disinterested members of such Board of Directors, if any (and such majority or majorities, as the case may be, determines pursuant to a resolution of such Board of Directors or that such Affiliate Transaction satisfies the criterion in clause (yi) of this paragraph (a)); and (iii) in the event there are no Disinterested Directorssuch Affiliate Transaction involves an aggregate amount in excess of $5,000,000, DIMAC Holdings has received a fairness written opinion is provided by a nationally recognized appraisal or from an independent investment banking firm with respect to of nationally recognized standing that such Affiliate TransactionTransaction is fair to DIMAC Holdings or such Restricted Subsidiary, as the case may be, from a financial point of view.
(b) The provisions of paragraph (a) of this Section 412(a) shall 4.11 will not apply to:
prohibit (i) any Restricted Payment Transaction,
(1as defined in the DIMAC Operating Indenture as in effect on the Initial Issue Date) permitted to be paid pursuant to Section 4.7 (and in the case of Permitted Investments (as defined in the DIMAC Operating Indenture as in effect on the Initial Issue Date), only those described in clauses (v), (vi) and (ix) of the definition of Permitted Investments (as set forth in the DIMAC Operating Indenture as in effect on the Initial Issue Date)), (ii) the entering into, maintaining or performance of the obligations of DIMAC Holdings or any of its Restricted Subsidiaries under any employment contract, collective bargaining agreement, employee benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2iii) the payment of compensationcompensation to, performance of indemnification or contribution obligationsand indemnity provided on behalf of, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers officers, directors or directors consultants (excluding under the Advisory Services Agreement) in the ordinary course of business, (3iv) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director maintenance in the ordinary course of business not involving more than $100,000 in any one caseof benefit programs or arrangements for employees, officers or (5) Management Advances directors, including vacation plans, health and payments in respect thereof,
(iii) any transaction with the Companylife insurance plans, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Datedeferred compensation plans, and any payments made pursuant thereto,
retirement or savings plans and similar plans, (v) any transaction in the ordinary course between DIMAC Holdings or any of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
its Wholly-Owned Subsidiaries, (vi) any transaction the payment of fees and expenses under the Advisory Services Agreement as in effect on the ordinary course of business, Initial Issue Date or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) payments by DIMAC Operating and any of its Restricted Subsidiaries pursuant to the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith issuance or sale of any Capital Stock (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionsother than Disqualified Capital Stock) of DIMAC Operating.
Appears in 2 contracts
Sources: Indenture (Dimac Holdings Inc), Securities Purchase Agreement (DMW Worldwide Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (including, without limitation, the Tax Sharing Agreement), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,, and
(vii) any issuance or sale of Capital Stock (other than Disqualified Stock) of the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Company or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect capital contribution to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsCompany.
Appears in 2 contracts
Sources: Indenture (Sally Beauty Holdings, Inc.), Indenture (Sally Beauty Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectlyand each Restricted Entity shall not, enter into or conduct permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) unless involving (itogether with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless:
(1) the terms of such the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Subsidiary, as the case may be, Entity than those that could be obtained at the time of the Affiliate Transaction in a transaction arm’s-length dealings with a Person who is not such an Affiliate and Affiliate; and
(ii2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves aggregate consideration an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have been approved by a majority of determined in good faith that the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements criteria set forth in this Section 412(aclause (1) if (x) such Affiliate Transaction is are satisfied and have approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such relevant Affiliate Transaction.
(b) The provisions of Section 412(athe preceding paragraph (a) shall not apply toprohibit:
(i) any Restricted Payment Transaction,
(1) the entering intoRestricted Payments, maintaining or performance of any employment contractin each case permitted to be made pursuant to Section 4.08, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, and Permitted Investments;
(2) the payment any issuance of compensation, performance of indemnification or contribution obligationssecurities, or any issuanceother payments, grant awards or award grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, Directors;
(3) the payment of reasonable fees loans or advances to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director employees in the ordinary course of business not involving more than $100,000 in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one casetime;
(4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities;
(5) Management Advances transactions between or among the Company and payments in respect thereof,the Restricted Entities;
(iii6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights;
(7) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments agreement as in existence effect on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time (so long as any amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and any payments made pursuant thereto,the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7);
(v) any transaction 8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business on and otherwise in compliance with the terms not materially less favorable of this Indenture which are fair to the Company or and the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction Entities, in the ordinary course of business, or approved by a majority reasonable determination of the Board of DirectorsDirectors or the senior management of the Company, between or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the Company or any Restricted Subsidiary and any Affiliate entering into agreements with equity holders of the Company controlled by including, without limitation, the Company that is a joint venture or similar entity,
(vii) the execution, delivery entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements;
(10) Affiliate Transactions with a Person solely in its capacity as a holder of debt or equity securities where such Person is treated no more favorably in such transaction than any Tax Sharing Agreement and any Management Agreementsother security holders who are not Affiliates; and
(11) Transactions pursuant to, including (1) payment to CDR contemplated by or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with (i) the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Coop Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viiiii) the TransactionsMCSA, all transactions in connection therewith and/or (including iii) the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsSecurities Purchase Agreement.
Appears in 2 contracts
Sources: Indenture (Skyterra Communications Inc), Indenture (Skyterra Communications Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “”Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with the Company, any Restricted Subsidiary Subsidiary, or any Receivables Special Purpose Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR CDR, Carlyle or ML or any Affiliate of CDR their respective Affiliates of a fee fees of up to $18.0 75.0 million in the aggregate, plus out-of-pocket expenses expenses, in connection with the Transactions, and (2) payment to CDR CDR, Carlyle or ML or any Affiliate of CDR their respective Affiliates of fees of up to $2.0 7.5 million in the aggregate in any fiscal year, and fees in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR CDR, Carlyle or ML or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or capital contribution to the Company.
Appears in 2 contracts
Sources: Indenture (Hertz Corp), Indenture (Hertz Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent (each, an “Affiliate Transaction”) unless (i) the terms or series of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, transactions having a value greater than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 2.5 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that reasonably could be obtained at the time of such transaction in arm’s-length dealings in a comparable transaction with a Person who that is not an Affiliate; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Parent shall have received an opinion as to the fairness to the Parent and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view or that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate issued by an accounting, appraisal or investment banking firm of the Company,international standing.
(vib) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.13(a):
(i) any transaction employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and compensation (including bonuses and equity compensation) paid to and other benefits (including retirement, health and other benefit plans) and indemnification arrangements provided on behalf of directors, officers and employees of the Parent or any Restricted Subsidiary;
(ii) transactions between or among or primarily for the benefit of the Parent and/or its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Equity Interests of the Parent, restricted share plans, long-term incentive plans, share appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees approved by the Board of Directors;
(v) Guarantees issued by the Parent or a majority Restricted Subsidiary in accordance with Section 4.3 (Incurrence of Indebtedness and Issuance of Preferred Stock);
(vi) the performance of obligations of the Parent or any Restricted Subsidiary under the terms of any agreement to which the Parent or any Restricted Subsidiary is a party on the Effective Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Effective Date shall be permitted to the extent that its terms, taken as a whole, are not more materially disadvantageous to the Holders than the terms of the agreements in effect on the Effective Date;
(vii) any issuance of Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of the Parent;
(viii) any Restricted Payment that does not violate the provisions of Section 4.4 (Limitation on Restricted Payments) of this Indenture or Permitted Investments;
(ix) loans or advances to employees in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding;
(x) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Parent and/or one or more Restricted Subsidiaries, on the one hand, and any other Person with which the Parent or such Restricted Subsidiaries are required or permitted to file a consolidated tax return or with which the Parent or such Restricted Subsidiaries are part of a consolidated group for tax purposes, on the other hand, provided that any payments by the Parent and the Restricted Subsidiaries required under such agreement are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(xi) transactions contemplated by supply, purchase or sale agreements with suppliers or purchasers or sellers of goods or services (other than the Parent or its Restricted Subsidiaries) in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are in the aggregate fair to the Parent or the Restricted Subsidiaries, in the reasonable determination of the Board of Directors, between the Company Directors or any Restricted Subsidiary and any Affiliate senior management of the Company controlled by the Company that is a joint venture Parent, or similar entity,are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(viixii) any of the transactions contemplated in the Restructuring Transactions; and
(xiii) the execution, delivery granting and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate SEC registration rights for securities of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsParent.
Appears in 2 contracts
Sources: Indenture (Central European Distribution Corp), Indenture (Central European Distribution Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 20.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,;
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer officer, director or director consultant of or to the Borrower or any Restricted Subsidiary heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such management members, employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries (as determined in good faith by the Company or such SubsidiaryBorrower, which determination shall be conclusive), (4) any transaction with an officer or director of the Borrower or any of its Subsidiaries in the ordinary course of business not involving more than $100,000 120,000 in any one case, or (5) Management Advances and payments in respect thereof,thereof (or in reimbursement of any expenses referred to in the definition of such term);
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries, and/or one or any Receivables Entity,more Special Purpose Entities;
(iv) any transaction arising out of agreements agreements, arrangements or instruments in existence on the Issue Date, Effective Date and any payments made pursuant thereto,;
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,Borrower;
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company Borrower that is a joint venture or similar entity,;
(vii1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus outthe Spin-of-pocket expenses in connection with the Transactions, Off Documents and (2) payment payments made pursuant to CDR any of the Spin-Off Documents or any Affiliate that are approved by a majority of CDR the Board of fees of up to $2.0 million Directors in any fiscal yeargood faith, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, andwhose determination shall be conclusive;
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereofthereof and all transactions contemplated by the Spin-Off Documents), and all fees and expenses paid or payable in connection with the Transactions;
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or any capital contribution to the Borrower; and
(x) transactions permitted by, and complying with, subsection 7.3 solely for purposes of effecting a transaction of the type described in subsection 7.3(d).
Appears in 2 contracts
Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “"Affiliate Transaction”") unless such Affiliate Transaction is on terms (i) the terms of such Affiliate Transaction that are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate, (ii) if that, in the event that such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 5.0 million, the terms of such Affiliate Transaction (1) are set forth in writing and (2) have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth Governing Board of the Company having no personal stake in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or and (yiii) that, in the event there are no Disinterested Directorsthat such Affiliate Transaction involves an amount in excess of $20.0 million, a fairness opinion is provided have been determined by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transactionbe fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 412(a4.07(a) shall not apply to:
prohibit (i) any Restricted Payment Transaction,
or Permitted Investment permitted to be paid pursuant to Section 4.04, (1ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Governing Board of the Company, (iii) the entering intogrant of stock options or similar rights to employees and directors of the Company pursuant to plans approved by the Governing Board of the Company, maintaining (iv) loans or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into advances to employees in the ordinary course of businessbusiness in accordance with past practices of the Company, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangementsbut in any event not to exceed $10.0 million in the aggregate outstanding at any one time, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3v) the payment of reasonable fees to directors of the Company or any of and its Subsidiaries (as determined in good faith by who are not employees of the Company or such Subsidiary)its Subsidiaries, (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any and a Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
between Restricted Subsidiaries, (vii) amounts payable to Dex Media pursuant to the executionmanagement agreement as in effect on the Closing Date on the terms described in the Offering Memorandum or pursuant to any amendment, delivery and performance restatement or replacement thereof to the extent that the terms of any Tax Sharing Agreement and such amendment, restatement or replacement are not, taken as a whole, disadvantageous to the Holders in any Management Agreementsmaterial respect, including provided that any payments pursuant to this clause (1vii) payment with respect to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of management fees of up to shall not exceed $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all reasonable out-of-pocket expenses incurred by CDR or any such Affiliate Dex Media in connection with its performance of management management, consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactionsany transaction with customers, all transactions clients, suppliers or purchasers or sellers of goods or services, in connection therewith (including the financing thereof), and all fees and expenses paid or payable each case in connection compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable good faith determination of the Governing Board or its senior management, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party, (ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any agreements with Dex Media West or Dex Media that are described in the Offering Memorandum under the heading "The Transactions-Agreements between us and Dex Media West and/or Dex Media" to which it is a party as of the closing date of the Dex Media West Acquisition on the terms described in the Offering Memorandum and any amendments thereto and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to such agreements or under any such similar agreements shall only be permitted by this clause (ix) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not disadvantageous to the Holders in any material respect, or (x) the sale of receivables on substantially the terms that receivables are purchased by Qwest Corporation pursuant to the billing and collections services agreement as in effect on the Closing Date and as described in the Offering Memorandum.
Appears in 2 contracts
Sources: Indenture (Dex Media International Inc), Indenture (Dex Media Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering intoAffiliate Transaction is on terms, maintaining or performance of any employment contracttaken as a whole, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto;
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person who that is not an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with the terms of (a) agreements described in the annual report on Form 10-K of the Company for the fiscal year ended December 31, 2023 under the caption “Transactions with Related Persons” or in note 15 to the Company,’s audited historical financial statements included in such annual report, in each case, as such agreements are in effect on the Issue Date, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, no less advantageous to the Company or no less favorable to the Holders in any material respect than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, modified or supplemented from time to time, so long as any transaction such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s-length basis;
(x) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” with respect to clause (b) so long as any such transaction, if involving aggregate consideration in excess of $25.0 million, has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company;
(xi) transactions between the Company and any Person, between a director of which is also a director of the General Partner or, if applicable, the Company; provided, however, that such director abstains from voting as a director of the General Partner or, if applicable, the Company on any matter involving such other Person; and
(xii) any transaction in which the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) as the Transactionscase may be, all transactions in connection therewith (including delivers to the financing thereofTrustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 4.11(a), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Senior Notes Indenture (Genesis Energy Lp), Twenty First Supplemental Indenture (Genesis Energy Lp)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, exchange or lease of assets or exchange of any property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company Issuer or any Restricted Subsidiary involving aggregate payments or consideration in excess of the greater of (A) $75 million and (B) 2.0% of Distributable Cash for the applicable Test Period (each, an “Affiliate Transaction”), unless:
(1) unless (i) the such transaction or series of transactions is on terms of such Affiliate Transaction that, taken as a whole, are not materially less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be would have been obtained at the time in a comparable transaction at such time on an arm’s-length basis with a Person who third parties that are not Affiliates, or, if in the good faith judgment of the Issuer, no comparable transaction is not available with which to compare such an Affiliate and (ii) if Transaction, such Affiliate Transaction involves is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) with respect to any transaction or series of related transactions involving aggregate consideration payments or the transfer of assets or the provision of services, in excess each case having a value that exceeds the greater of (A) $15.0 million150 million and (B) 4.5% of Distributable Cash for the applicable Test Period, the terms Issuer’s Board of Directors must approve such Affiliate Transaction have been approved by transaction (including a majority of the Disinterested Directors. For purposes of this Section 412(adisinterested directors), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Notwithstanding the foregoing, the restrictions set forth in Section 412(a4.11(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering intocustomary directors’ fees and expenses, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other indemnities and similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, arrangements (including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of directors’ and officers’ insurance premiums), consulting fees, employee compensation, performance of indemnification employee and director bonuses, employment agreements and arrangements or contribution obligationsemployee benefit arrangements, including stock options or any issuancelegal fees, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company Issuer;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.07 (including any transaction that would otherwise constitute a Restricted Payment but is expressly excluded from the definition of the term “Restricted Payments”);
(3) any Management Advances and any waiver or such Subsidiary), transaction with respect thereto;
(4) agreements and arrangements existing on the Issue Date, and the performance by the Issuer or any transaction Restricted Subsidiary of their obligations thereunder and any amendments, modifications, replacements or supplements thereto or similar agreements entered into in the future; provided that any such amendments, modifications, replacements or supplements, taken as a whole, or any such similar agreements, are not more disadvantageous to the Holders in any material respect than the original agreements or arrangements as in effect on the Issue Date (as determined by the Issuer in good faith) or as are not otherwise prohibited by this Section 4.11;
(5) the issuance of securities pursuant to, or for the purpose of the funding of, employment, termination or severance arrangements, stock options and stock ownership plans, as long as the terms thereof are or have been previously approved by the Issuer’s or the relevant Restricted Subsidiary’s Board of Directors;
(6) (i) transactions between or among, or for the benefit of, the Issuer and the Restricted Subsidiaries (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries, and (ii) any merger, amalgamation or consolidation with an officer any Parent Entity, provided that, in the case of this clause (ii), such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, amalgamation or director consolidation is otherwise not prohibited under this Indenture;
(7) payments to or from, and transactions with, customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services (including any cash management activities related thereto), in each case in the ordinary course of business not involving more than $100,000 in any one caseor consistent with past practice or industry norms, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with that are on terms, taken as a whole, which are fair to the Company, any Issuer or the applicable Restricted Subsidiary or any Receivables Entity,at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(iv8) any issuance of Equity Interests (other than Disqualified Stock) of the Issuer;
(9) the pledge of Equity Interests of Unrestricted Subsidiaries;
(10) any transaction arising out contribution to the capital of agreements the Issuer;
(11) transactions with respect to which the Issuer has obtained an opinion as to the fairness to the Issuer and its Restricted Subsidiaries from a financial point of view issued by an accounting, appraisal or instruments in existence on the Issue Dateinvestment banking firm of national standing;
(12) transactions permitted by, and any payments made pursuant thereto,complying with, the provisions of, Article 5;
(v13) transactions with (i) Unrestricted Subsidiaries or (ii) Joint Ventures in which the Issuer or a Subsidiary of the Issuer holds or acquires an ownership interest (whether by way of Capital Stock or otherwise) or any transaction partners of any such Joint Venture, in each case entered into in the ordinary course of or business or consistent with past practice or industry norms (including, without limitation, any cash management activities related thereto), or that are on terms not materially less terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable to the Company Issuer or the relevant applicable Restricted Subsidiary than those that could be as might reasonably have been obtained at such time from an unaffiliated party (as determined by the Issuer in good faith);
(14) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that is an Affiliate solely as a result of the ownership by the Issuer or any of the Restricted Subsidiaries of Capital Stock of such Person;
(15) transactions with Persons solely in their capacity as holders of Indebtedness of the Issuer or any of its Restricted Subsidiaries where such Persons are treated no more favorably than holders of Indebtedness of the Issuer or such Restricted Subsidiaries generally;
(16) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the time such Unrestricted Subsidiary becomes a Restricted Subsidiary;
(17) (i) investments by Affiliates in a transaction with a Person who is not an Affiliate securities or loans or other Indebtedness of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Issuer or any of its Restricted Subsidiary Subsidiaries (and any Affiliate payment of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR such Affiliates in connection therewith) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other investors on the same or more favorable terms, and (ii) payments to Affiliates in respect of securities or loans or other Indebtedness of the Issuer or any such Affiliate of its Restricted Subsidiaries contemplated in connection with its performance of management consulting, monitoring, financial advisory the foregoing subclause (i) or that were acquired from Persons other services with respect to than the Company Issuer and its Restricted Subsidiaries, andin each case, in accordance with the terms of such securities or loans;
(viii18) transfers of leases, servitudes or similar assets and the Transactionsentry into related license agreements, all transactions in each case, in the ordinary course of business or consistent with past practice or industry norms;
(19) any lease entered into between the Issuer or any Restricted Subsidiary, as lessee, and any Affiliate of the Issuer, as lessor, in each case entered into in the ordinary course of business or consistent with past practice or industry norms, or that is on terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(20) any administrative services agreement, operations and maintenance agreement, marketing agreement, charter agreement, shipping agency agreement, reciprocal services agreement, excess capacity offtake agreement (including any sale and purchase agreement entered into in connection therewith therewith) or other similar agreement or arrangement with the VGP Investor or any of its Affiliates relating to, or otherwise entered into in connection with, any Project or Permitted Business, in each case entered into in the ordinary course or business or consistent with past practice or industry norms, or that are on terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable to the Issuer or the applicable Restricted Subsidiary as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(21) payments by the Issuer or any Restricted Subsidiary (including the financing thereofany payment to any Parent Entity for further payment by such Parent Entity), (A) to reimburse the VGP Investor and all fees any of its Affiliates and designees for any reasonable or customary out-of- pocket costs and expenses paid or payable incurred in connection with the provision of any management, advisory, consulting or other similar services, and (B) to pay reasonable or customary management, monitoring, consulting and similar fees to the VGP Investor; provided that, in the case of the foregoing subclause (B), no such payments shall be made if an Event of Default shall have occurred and be continuing or would immediately result after giving pro forma effect to such payments (it being agreed that such amounts may accrue, but not be payable in cash during such period; provided that all such accrued amounts (plus accrued interest, if any, with respect thereto) may be payable in cash upon the cure or waiver of such Event of Default);
(22) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement relating thereto) in effect as of the Issue Date and any amendments, modifications, replacements or supplements thereto or similar agreements entered into in the future; provided that any such amendments, modifications, replacements or supplements, taken as a whole, or any such similar agreements, are not more disadvantageous to the holders of the Notes in any material respect than the original agreements or arrangements as in effect on the Issue Date (as determined by the Issuer in good faith) or as are not otherwise prohibited by this Section 4.11;
(23) any transactions with any Captive Insurance Subsidiary;
(24) any Project Obligations, Permitted Project Undertakings and ECR Transactions;
(25) any Permitted Intercompany Activities, any IPO Reorganization Transactions, any Tax Restructuring, and related transactions; and
(26) sales of accounts receivable, or participations therein, or accounts receivable, royalty or other revenue streams and other rights to payment and any other assets, or other transactions, in connection with any Permitted Receivables Financing.
Appears in 2 contracts
Sources: Indenture (Venture Global, Inc.), Indenture (Venture Global, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Recourse Subsidiaries to, directly or indirectly, enter into or conduct engage in any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless involving aggregate payments or consideration in excess of $10,000,000, unless:
(i) the terms of such Affiliate Transaction transaction are not materially less favorable when taken as a whole to the Company or such Subsidiary as terms that would be obtainable at the time for a comparable transaction or series of similar transactions in arm’s-length dealings with an unrelated third Person, and
(ii) to the extent that such transaction (other than Indebtedness issued by the Company which is permitted under Section 11.2) is known by the Board of Directors of the Company to involve an Affiliate of the Company, other than any purchase or sale of inventory in the ordinary course of business, involving aggregate payments or other consideration in excess of $20,000,000, such transaction has been approved (and the value of any noncash consideration has been determined) by all of the independent members of the Board of Directors of the Company and the Company delivers to the Administrative Agent a certificate executed by a Responsible Officer evidencing such approval (provided that if no member of the Board of Directors of the Company is independent, the Company may deliver to the Administrative Agent a letter from a nationally recognized investment banking firm stating that the financial terms of such transaction are fair to the Company from a financial point of view or meets the requirements of Section 11.10(a)(i)).
(b) Nothing contained in this Section 11.10 shall prohibit:
(i) the Company from making Restricted SubsidiaryPayments permitted by Section 11.7;
(ii) any transaction under the Company Tax Sharing Agreement;
(iii) [Intentionally Omitted.];
(iv) any transaction with an officer, director, manager, employee or consultant of the Company, of Parent or of any Subsidiary of the Company (including compensation or employee benefit arrangements with any such officer, director, manager, employee or consultant in the ordinary course of business);
(v) any business or transaction with a Permitted Joint Venture between the Company or any of its Subsidiaries, on the one hand, and a third party that is not directly or indirectly controlled by an Affiliate of the Company, on the other hand;
(vi) any transaction pursuant to which a Parent or any Affiliate of the Company will provide the Company and its Subsidiaries at their request and at the cost to such Parent or such Affiliate with certain allocated services, including services to be purchased from third party providers, such as legal and accounting services, tax, consulting, financial advisory, corporate governance, insurance coverage and other services;
(vii) payments by the Company or a Subsidiary of the Company to a Parent or any Affiliate of the Company for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by a majority of the members of the Board of Directors of the Company in good faith;
(viii) [Intentionally Omitted.];
(ix) transactions in which the Company or any Recourse Subsidiary of the Company, as the case may be, than those delivers to the Administrative Agent a letter from a nationally recognized investment banking firm stating that could be obtained at such transaction is fair to the time in Company or such Subsidiary from a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess financial point of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied view or meets the requirements set forth in this of Section 412(a) if 11.10(a)(i);
(x) such Affiliate Transaction is approved investments by a majority Parent or any Affiliate of the Disinterested Directors or Company in securities (yother than Capital Stock) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Recourse Subsidiaries so long as (as determined in good faith i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment to be held by the Company such Parent or such Subsidiary), Affiliate constitutes less than 5.0% of the proposed or outstanding issue amount of such class of securities;
(4xi) any transaction with an officer Affiliate in which the consideration paid by the Company or director any Recourse Subsidiary of the Company consists only of Capital Stock of Revlon (other than Redeemable Stock or Exchangeable Stock);
(xii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services that are Affiliates, in each case, in the ordinary course of business not involving more than $100,000 and otherwise in any one case, or (5) Management Advances compliance with the terms of this Agreement that are fair to the Company and payments in respect thereof,
(iii) any transaction with the Recourse Subsidiaries of the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority good faith determination of the Board of DirectorsDirectors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(xiii) [Intentionally Omitted.];
(xiv) any transaction contemplated by Section 11.7 (v) or Section 11.7 (vi); and
(xv) any transaction between the Company or any Restricted a Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiariesown employee stock ownership plan and the issuance or transfer of Non-Convertible Capital Stock of the Company to Revlon or to any director, and
manager, officer, employee or consultant of the Company, its Subsidiaries or any direct or indirect parent company thereof (viii) the Transactionsor their estates, all transactions in connection therewith (including the financing thereofspouses or former spouses), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate consideration in excess of $10.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 40.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer officer, director or director consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company Company, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, case or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, and/or one or any Receivables Entitymore Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Management Agreement referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management AgreementsAgreement, including and (12) payment payments to CDR CD&R, ▇▇▇▇ Capital or Carlyle or any Affiliate of CDR their respective Affiliates (w) of a fee of up to $18.0 million plus any and all out-of-pocket expenses in connection with the Transactions, and (2x) payment for any management, consulting, financial advisory, financing, underwriting or placement services or in respect of other investment banking activities pursuant to CDR or any Affiliate of CDR of fees of up to the Management Agreements, provided that payments under this clause (x) shall not exceed $2.0 7.5 million in any fiscal per calendar year, and fees (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), the execution, delivery and performance of all agreements and instruments in connection with the Transactions, and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or Junior Capital or any capital contribution to the Company,
(x) any amendment, supplement, waiver or other modification to or of the April 2012 Senior Unsecured Notes, the April 2012 Senior Unsecured Indenture or any related agreements, documents and instruments, or any of the terms and provisions of any thereof, (1) in connection with any Extinguishment of Senior Obligations or (2) to provide for the payment of interest in cash instead of in additional principal, or in additional principal instead of in cash, in each case in whole or in part (whether or not in connection with any Extinguishment of Senior Obligations), and
(xi) any investment by any Investor in securities of the Company or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 2 contracts
Sources: Indenture (Hd Supply, Inc.), Indenture (LBM Holdings, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary toNo Note Party shall, directly or indirectly, enter into or conduct suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, exchange or lease of assets or exchange of any property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “Affiliate Transaction”) or any other Subsidiary involving aggregate payments or consideration in excess of $5.0 million, unless such transaction or series of transactions is entered into in good faith and:
(i) the such transaction or series of transactions is on terms of such Affiliate Transaction that, taken as a whole, are not materially less favorable to the Company or such Restricted other Subsidiary, as the case may be, than those that could be would have been obtained at the time in a comparable transaction at such time on an arm’s-length basis with a Person who is third parties that are not such an Affiliate and Affiliates; and
(ii) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate consideration payments or the transfer of assets or the provision of services, in excess of each case having a value greater than $15.0 10.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes independent members of this Section 412(a)the Company’s Board of Directors must approve such transaction.
(b) Notwithstanding the foregoing, any Affiliate Transaction shall be deemed to have satisfied the requirements restrictions set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall 10.4 will not apply to:
(i) customary directors’ fees, indemnities and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee compensation, employee and director bonuses, employment agreements and arrangements or employee benefit arrangements, including stock options or legal fees, as determined in good faith by the Company’s Board of Directors or senior management;
(ii) any Restricted Payment Transaction,not prohibited by Section 10.3;
(1iii) loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the entering into, maintaining Company or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any such other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into Subsidiary made in the ordinary course of businessbusiness and consistent with the Company’s past practices or past practices of the relevant Subsidiary, as the case may be;
(iv) agreements and arrangements existing on the Purchase Date and any amendment, modification or supplement thereto; provided that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the holders of the Notes in any material respect than the original agreement or arrangement as in effect on the Purchase Date;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options and stock ownership plans, as long as the terms thereof are or have been previously approved by the Company’s or the relevant Subsidiary’s Board of Directors;
(vi) transactions between or among the Company and the Subsidiaries or between or among Subsidiaries;
(vii) any transaction between or among (x) the Company and/or its Subsidiaries; and (y) any joint venture (where such joint venture is an Affiliate solely because the Company and/or its Subsidiaries owns an equity interest in or otherwise Controls such joint venture) (1) pursuant to the terms of the respective joint venture or other agreements, including vacationbut not limited to engineering, healthprocurement and construction contracts, insurance, deferred compensation, severance, retirement, savings or operation and maintenance contracts and other similar plans, programs or arrangements, project agreements; (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, business in accordance with past practice; (3) pursuant to cash pooling or other similar arrangements; (4) consisting of an Investment; (5) which are fair to the payment Company or the relevant Subsidiary, in the reasonable determination of the Board of Directors or senior management of the Company or the Subsidiary, as applicable; or (6) which is on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated Person, in the reasonable fees to directors determination of the Board of Directors or senior management of the Company or the Subsidiary, as applicable;
(viii) any issuance of Equity Interests of the Company;
(ix) the existence of, or the performance by the Company or any of its Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement relating thereto) to which it is a party as determined in good faith of the Purchase Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Subsidiaries of, obligations under any future amendment to any such Subsidiaryexisting agreement or under any similar agreement entered into after the Purchase Date shall only be permitted by this clause (ix) to the extent that the terms of any such amendment or new agreement are not disadvantageous to the holders of the Notes in any material respect;
(x) transactions arising under any agreement of a Person acquired by the Company or any Subsidiary with Parent or a Subsidiary of Parent relating to a Project in effect at the time of such acquisition (but not created in contemplation thereof), ;
(4xi) any transaction with an officer acquisition of assets from Parent or director a Subsidiary of Parent pursuant to any ROFO Agreement as such agreement is in existence as of the ordinary course Purchase Date or as such ROFO Agreement may be amended after the Purchase Date if such amendment is not more disadvantageous to the holders of business not involving more than $100,000 the Notes in any one case, or (5) Management Advances and payments in material respect thereof,
(iii) than any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments ROFO Agreement as it is in existence on as of the Issue Purchase Date, and any payments made pursuant thereto,
in each case so long as (vx) any transaction in the ordinary course of business such acquisition is on terms that, taken as a whole, are not materially less favorable to the Company or such Subsidiary, as the relevant Restricted Subsidiary case may be, than those that could be would have been obtained at the time in a comparable transaction at such time on an arm’s-length basis with a Person who is third parties that are not an Affiliate of the Company,
Affiliates and (viy) any transaction in the ordinary course of business, or approved by a majority of the independent members of the Company’s Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, Directors have approved such acquisition; and (2xii) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management transactions under the Shareholders’ Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.
Appears in 2 contracts
Sources: Note Issuance Facility Agreement (Atlantica Yield PLC), Note Issuance Facility Agreement (Atlantica Yield PLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each, an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with a an unrelated Person who is not an Affiliate or, if in the good faith judgment of the Company,’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(vi2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million but no greater than $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any transaction employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or approved by a majority issuances of securities pursuant thereto;
(2) transactions between or among any of the Board Company and its Restricted Subsidiaries (or any entity that becomes a Restricted Subsidiary as a result of Directorssuch transaction);
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 4.07 (and any transaction that would constitute a Restricted Payment but for the exclusions from the definition thereof);
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture and which is described in the Offering Memorandum, as such agreements may be amended, modified or supplemented from time to time; provided, however, that any amendment, modification or supplement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the date of this Indenture;
(9) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company that or any Restricted Subsidiary of the Company if such Person is a joint venture treated no more favorably than the other holders of Indebtedness or similar entity,Capital Stock of the Company or such Restricted Subsidiary;
(vii12) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the execution, delivery ordinary course of business and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses otherwise in connection compliance with the Transactionsterms of this Indenture which are, in the aggregate (taking into account all the costs and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal yearbenefits associated with such transactions), and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect not materially less favorable to the Company and its Restricted SubsidiariesSubsidiaries than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person, in the good faith determination of the Company’s Board of Directors or any executive officer of the Company involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(13) transactions entered into by a Person prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Company or a Subsidiary (provided such transaction is not entered into in contemplation of such event); and
(viii14) dividends and distributions to the Transactions, all transactions in connection therewith (including the financing thereof), Company and all fees and expenses paid its Restricted Subsidiaries by any Unrestricted Subsidiary or payable in connection with the TransactionsJoint Venture.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) unless unless:
(i) the terms of such Affiliate Transaction is on terms that are not materially less favorable to the Company or such its relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or such Restricted Subsidiary from a Person who financial point of view and when such transaction is not such an Affiliate and taken in its entirety; and
(ii) if such with respect to any Affiliate Transaction involves or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 million2,000,000 per annum, the terms of such Affiliate Transaction transaction have been approved by a majority of the Disinterested members of the Board of Directors. For purposes of this Section 412(a), any Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in of clause (ii) of this Section 412(a3.11(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in disinterested directors of the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate TransactionCompany.
(b) The provisions of Section 412(a3.11(a) hereof shall not apply toto the following:
(i) (A) transactions between or among the Company or any of its Restricted Payment TransactionSubsidiaries (or any entity that becomes a Restricted Subsidiary as a result of such transaction);
(ii) payments by the Company or any of its Restricted Subsidiaries, (A) to reimburse for any out-of-pocket costs and expenses incurred in connection with the provision of any management, advisory, consulting or other similar services, (B) for indemnification and similar expenses, (C) for customary compensation to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, which payments are approved by the majority of the Board of Directors in good faith,
(1iii) (A) employment agreements, employee benefit and incentive compensation plans and arrangements, and (B) the entering intopayment of reasonable and customary fees and compensation paid to, maintaining and indemnities and reimbursements and employment and severance arrangements;
(iv) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s- length basis;
(v) any agreement or arrangement as in effect as of the Issue Date, or any amendment or replacement thereto (so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the Company to the Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date);
(vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders, shareholders, investor rights or similar agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vi) to the extent that the terms of any employment contractsuch amendment or new agreement are not otherwise, collective bargaining agreementwhen taken as a whole, benefit planmaterially disadvantageous in the good faith judgment of the Company to the Holders than those in effect on the Issue Date;
(vii) the Merger and the payment of all fees and expenses related to the Merger;
(viii) transactions with customers, program clients, suppliers, contractors, joint venture partners or arrangementpurchasers or sellers of goods or services or providers of employees or other labor that are Affiliates, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in each case in the ordinary course of businessbusiness or that are consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Company and its Restricted Subsidiaries, including vacationin the reasonable determination of the Company, healthor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(ix) the issuance or transfer of (A) any Equity Interests and (B) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(x) sales of accounts receivable, insuranceor participations therein, deferred compensationor accounts receivable, severance, retirement, savings royalty or other similar plans, programs or arrangements, (2) the revenue streams and other rights to payment of compensation, performance of indemnification or contribution obligationsand any other assets, or other transactions, in connection with any issuanceIndebtedness permitted under this Indenture;
(xi) any payments pursuant to any management equity plan or stock or share option plan or any other management or employee benefit plan or agreement or any stock or share subscription or shareholder agreement that are, grant in each case, approved by the Company in good faith; and any employment agreements, stock or award of stockshare option plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements that are, optionsin each case, other equity-related interests approved by the Company in good faith;
(xii) (A) investments by Affiliates in securities or loans or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors Indebtedness of the Company or any of its Restricted Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course and payment of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other investors on the same or more favorable terms, and payments to Affiliates in respect of securities or loans or other Indebtedness of the Company or any such Affiliate of its Restricted Subsidiaries contemplated in connection with its performance of management consulting, monitoring, financial advisory the foregoing subclause (A) or that were acquired from Persons other services with respect to than the Company and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(xiii) payments to or from, and transactions with, any customers, clients, joint ventures or joint venture partners, suppliers, purchasers or sellers of goods or services in the ordinary course of business or consistent with past practice (including, without limitation, any cash management activities related thereto);
(xiv) payments by the Company and its Subsidiaries pursuant to, or the entry into, tax sharing agreements among the Company and its Subsidiaries;
(xv) any lease entered into between the Company or any of its Restricted Subsidiaries, as lessee, and any Affiliate of the Company, as lessor, which is approved by the Company in good faith;
(xvi) non-exclusive intellectual property licenses and research and development agreements in the ordinary course of business or consistent with past practice;
(xvii) the payment of customary fees and reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to equityholders of the Company pursuant to any equityholders, registration rights or similar in the ordinary course of business to the extent attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(xviii) [Reserved]; and
(viiixix) (A) any transactions with a Person which would constitute an Affiliate Transaction solely because the Transactions, all Company or its Restricted Subsidiary owns an equity interest in or otherwise controls such Person or (B) transactions in connection therewith (with a Person which would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Company; provided that such director abstains from voting as a director of the Company on any matter including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionssuch other Person.
Appears in 2 contracts
Sources: Indenture (Getaround, Inc), Convertible Note Subscription Agreement (InterPrivate II Acquisition Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $50,000,000 unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million50,000,000, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)8.6, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) 8.6 if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a8.6(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Parent Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Parent Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Parent Borrower, such Subsidiary or such SubsidiaryParent, in each case), (4) any transaction with an officer or director of the Parent Borrower or any of its Subsidiaries or any Parent in the ordinary course of business (x) not involving more than $100,000 1,000,000 in any one casecase or (y) approved by a majority of the Board of Directors, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyParent Borrower, any one or more Restricted Subsidiary Subsidiaries or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Closing Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Parent Borrower and its Restricted Subsidiaries as determined in good faith by the Parent Borrower, or are not materially less favorable to the Company Parent Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyParent Borrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Parent Borrower or any Restricted Subsidiary and any Affiliate of the Company Parent Borrower controlled by the Company Parent Borrower that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or similar entity,
(vii) [Reserved],
(viii) any issuance or sale of Capital Stock (other than Disqualified Stock) of the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR Parent Borrower or any Affiliate of CDR of a fee of up Parent or capital contribution to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR Parent Borrower or any Affiliate of CDR of fees of up to $2.0 million in any fiscal yearRestricted Subsidiary, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to and
(ix) transactions between the Company Parent Borrower and its Restricted Subsidiaries, and
(viii) on the Transactions, all transactions in connection therewith (including the financing thereof)one hand, and all fees and expenses paid or payable in connection the Plan Sponsors, on the other hand, with respect to the TransactionsAmex GBT Contracts.
Appears in 2 contracts
Sources: Credit Agreement (Hertz Corp), Credit Agreement (Hertz Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, exchange or lease of assets or exchange of any property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company Issuer or any Restricted Subsidiary involving aggregate payments or consideration in excess of the greater of (A) $75 million and (B) 2.0% of Distributable Cash for the applicable Test Period (each, an “Affiliate Transaction”), unless:
(1) unless (i) the such transaction or series of transactions is on terms of such Affiliate Transaction that, taken as a whole, are not materially less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be would have been obtained at the time in a comparable transaction at such time on an arm’s-length basis with a Person who third parties that are not Affiliates, or, if in the good faith judgment of the Issuer, no comparable transaction is not available with which to compare such an Affiliate and (ii) if Transaction, such Affiliate Transaction involves is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) with respect to any transaction or series of related transactions involving aggregate consideration payments or the transfer of assets or the provision of services, in excess each case having a value that exceeds the greater of (A) $15.0 million150 million and (B) 4.5% of Distributable Cash for the applicable Test Period, the terms Issuer’s Board of Directors must approve such Affiliate Transaction have been approved by transaction (including a majority of the Disinterested Directors. For purposes of this Section 412(adisinterested directors), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Notwithstanding the foregoing, the restrictions set forth in Section 412(a4.11(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering intocustomary directors’ fees and expenses, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other indemnities and similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, arrangements (including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of directors’ and officers’ insurance premiums), consulting fees, employee compensation, performance of indemnification employee and director bonuses, employment agreements and arrangements or contribution obligationsemployee benefit arrangements, including stock options or any issuancelegal fees, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company Issuer;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.07 (including any transaction that would otherwise constitute a Restricted Payment but is expressly excluded from the definition of the term “Restricted Payments”);
(3) any Management Advances and any waiver or such Subsidiary), transaction with respect thereto;
(4) agreements and arrangements existing on the Issue Date, and the performance by the Issuer or any transaction Restricted Subsidiary of their obligations thereunder and any amendments, modifications, replacements or supplements thereto or similar agreements entered into in the future; provided that any such amendments, modifications, replacements or supplements, taken as a whole, or any such similar agreements, are not more disadvantageous to the Holders in any material respect than the original agreements or arrangements as in effect on the Issue Date (as determined by the Issuer in good faith) or as are not otherwise prohibited by this Section 4.11;
(5) the issuance of securities pursuant to, or for the purpose of the funding of, employment, termination or severance arrangements, stock options and stock ownership plans, as long as the terms thereof are or have been previously approved by the Issuer’s or the relevant Restricted Subsidiary’s Board of Directors;
(6) (i) transactions between or among, or for the benefit of, the Issuer and the Restricted Subsidiaries (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries, and (ii) any merger, amalgamation or consolidation with an officer any Parent Entity, provided that, in the case of this clause (ii), such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, amalgamation or director consolidation is otherwise not prohibited under this Indenture;
(7) payments to or from, and transactions with, customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services (including any cash management activities related thereto), in each case in the ordinary course of business not involving more than $100,000 in any one caseor consistent with past practice or industry norms, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with that are on terms, taken as a whole, which are fair to the Company, any Issuer or the applicable Restricted Subsidiary or any Receivables Entity,at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(iv8) any issuance of Equity Interests (other than Disqualified Stock) of the Issuer;
(9) the pledge of Equity Interests of Unrestricted Subsidiaries;
(10) any transaction arising out contribution to the capital of agreements the Issuer;
(11) transactions with respect to which the Issuer has obtained an opinion as to the fairness to the Issuer and its Restricted Subsidiaries from a financial point of view issued by an accounting, appraisal or instruments in existence on the Issue Dateinvestment banking firm of national standing;
(12) transactions permitted by, and any payments made pursuant thereto,complying with, the provisions of, Article 5;
(v13) transactions with (i) Unrestricted Subsidiaries or (ii) Joint Ventures in which the Issuer or a Subsidiary of the Issuer holds or acquires an ownership interest (whether by way of Capital Stock or otherwise) or any transaction partners of any such Joint Venture, in each case entered into in the ordinary course of or business or consistent with past practice or industry norms (including, without limitation, any cash management activities related thereto), or that are on terms not materially less terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable to the Company Issuer or the relevant applicable Restricted Subsidiary than those that could be as might reasonably have been obtained at such time from an unaffiliated party (as determined by the Issuer in good faith);
(14) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that is an Affiliate solely as a result of the ownership by the Issuer or any of the Restricted Subsidiaries of Capital Stock of such Person;
(15) transactions with Persons solely in their capacity as holders of Indebtedness of the Issuer or any of its Restricted Subsidiaries where such Persons are treated no more favorably than holders of Indebtedness of the Issuer or such Restricted Subsidiaries generally;
(16) transactions entered into by (i) an Unrestricted Subsidiary with an Affiliate prior to the time in such Unrestricted Subsidiary becomes a transaction with Restricted Subsidiary or (ii) a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of businessacquired by or merged, amalgamated, or approved by a majority of consolidated with or into the Board of Directors, between the Company Issuer or any Restricted Subsidiary and any Affiliate prior to the time of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any such acquisition, merger, recapitalization amalgamation or similar transaction consolidation, as provided applicable;
(17) (i) investments by Affiliates in securities or loans or other Indebtedness of the Issuer or any such Management Agreement, plus all of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by CDR such Affiliates in connection therewith) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other investors on the same or more favorable terms, and (ii) payments to Affiliates in respect of securities or loans or other Indebtedness of the Issuer or any such Affiliate of its Restricted Subsidiaries contemplated in connection with its performance of management consulting, monitoring, financial advisory the foregoing subclause (i) or that were acquired from Persons other services with respect to than the Company Issuer and its Restricted Subsidiaries, andin each case, in accordance with the terms of such securities or loans;
(viii18) transfers of leases, servitudes or similar assets and the Transactionsentry into related license agreements, all transactions in each case, in the ordinary course of business or consistent with past practice or industry norms;
(19) any lease entered into between the Issuer or any Restricted Subsidiary, as lessee, and any Affiliate of the Issuer, as lessor, in each case entered into in the ordinary course of business or consistent with past practice or industry norms, or that is on terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(20) any administrative services agreement, operations and maintenance agreement, marketing agreement, charter agreement, shipping agency agreement, reciprocal services agreement, excess capacity offtake agreement (including any sale and purchase agreement entered into in connection therewith therewith) or other similar agreement or arrangement with the VGP Investor or any of its Affiliates relating to, or otherwise entered into in connection with, any Project or Permitted Business, in each case entered into in the ordinary course or business or consistent with past practice or industry norms, or that are on terms, taken as a whole, which are fair to the Issuer or the applicable Restricted Subsidiary or at least as favorable to the Issuer or the applicable Restricted Subsidiary as might reasonably have been obtained at such time from an unaffiliated party, in each case as determined by the Issuer in good faith;
(21) payments by the Issuer or any Restricted Subsidiary (including the financing thereofany payment to any Parent Entity for further payment by such Parent Entity), (A) to reimburse the VGP Investor and all fees any of its Affiliates and designees for any reasonable or customary out-of-pocket costs and expenses paid or payable incurred in connection with the provision of any management, advisory, consulting or other similar services, and (B) to pay reasonable or customary management, monitoring, consulting and similar fees to the VGP Investor; provided that, in the case of the foregoing subclause (B), no such payments shall be made if an Event of Default shall have occurred and be continuing or would immediately result after giving pro forma effect to such payments (it being agreed that such amounts may accrue, but not be payable in cash during such period; provided that all such accrued amounts (plus accrued interest, if any, with respect thereto) may be payable in cash upon the cure or waiver of such Event of Default);
(22) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement relating thereto) in effect as of the Issue Date and any amendments, modifications, replacements or supplements thereto or similar agreements entered into in the future; provided that any such amendments, modifications, replacements or supplements, taken as a whole, or any such similar agreements, are not more disadvantageous to the holders of the Notes in any material respect than the original agreements or arrangements as in effect on the Issue Date (as determined by the Issuer in good faith) or as are not otherwise prohibited by this Section 4.11;
(23) any transactions with any Captive Insurance Subsidiary;
(24) any Project Obligations, Permitted Project Undertakings and ECR Transactions;
(25) any Permitted Intercompany Activities, any IPO Reorganization Transactions, any Tax Restructuring, and related transactions; and
(26) sales of accounts receivable, or participations therein, or accounts receivable, royalty or other revenue streams and other rights to payment and any other assets, or other transactions, in connection with any Permitted Receivables Financing.
Appears in 2 contracts
Sources: Indenture (Venture Global, Inc.), Indenture (Venture Global, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 25.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company Company, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Company or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the Company, any one or more Restricted Subsidiary Subsidiaries, or any Receivables Entityone or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateDate (other than any Tax Sharing Agreement or Investment Agreement referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Investment Agreements, including and (12) payment payments to CDR CD&R or any Affiliate of CDR its Affiliates (w) of a fee fees of up to $18.0 25.0 million in the aggregate, plus out-of-pocket expenses expenses, in connection with the Transactions, and (2x) payment to CDR for any management consulting, financial advisory, financing, underwriting or any Affiliate placement services or in respect of CDR of fees other investment banking activities, of up to $2.0 5.0 million in any fiscal yearyear (or such other amount as may be approved by a majority of the Disinterested Directors), and fees (y) in connection with any acquisition, disposition, merger, recapitalization or similar transaction as provided transactions, which payments are made pursuant to the Investment Agreements or are approved by a majority of the Board of Directors in any such Management Agreementgood faith, plus and (z) of all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory such services or other services with respect to the Company and its Restricted Subsidiaries, andactivities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or any capital contribution to the Company, and
(x) any investment by any CD&R Investor in securities of the Company or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all CD&R Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 2 contracts
Sources: Indenture (Johnsondiversey Holdings Inc), Indenture (Johnsondiversey Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”") unless unless:
(i1) the terms of such the Affiliate Transaction are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time of the Affiliate Transaction in a transaction arm's-length dealings with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of $10,000,000, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors; and
(3) if such Affiliate Transaction involves an amount in excess of $50,000,000, the Board of Directors shall also have received a written opinion from an Independent Qualified Party to the effect that such Affiliate Transaction is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit:
(1) any Investment (other than a Permitted Investment) or other Restricted Payment, in each case permitted to be made pursuant to Section 4.04;
(2) any employment or consulting agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or approved by the Board of Directors, and payments pursuant thereto;
(3) loans or advances to employees in the ordinary course of business of the Company or its Restricted Subsidiaries, but in any event not to exceed $10,000,000 in the aggregate outstanding at any one time;
(4) the payment of reasonable fees or other reasonable compensation to, or the provision of customary benefits or indemnification arrangements to, directors of the Company and its Restricted Subsidiaries;
(5) any transaction with the Company, a Restricted Subsidiary or any Person that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary or Person;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company,;
(vi7) any transaction agreement as in effect on the Issue Date and described in the Offering Memorandum or any renewals or extensions of any such agreement (so long as such renewals or extensions are not less favorable in any material respect to the Company or the Restricted Subsidiaries) and the transactions evidenced thereby;
(8) the provision of services to directors or officers of the Company or any of its Restricted Subsidiaries of the nature provided by the Company or any of its Restricted Subsidiaries to customers in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, ; and
(viii9) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionseffected as a part of a Qualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Healthsouth Corp), Indenture (Healthsouth Corp)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with any Affiliate Affiliate, officers or directors of the Company Issuer (an “"Affiliate Transaction”") unless (i) the terms of such Affiliate Transaction transaction are not materially no less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not such an Affiliate and Affiliate; (ii) if in the event such Affiliate Transaction involves an aggregate consideration amount in excess of $15.0 1.0 million, the terms of such Affiliate Transaction transaction are set forth in writing and shall have been approved by a majority of the Disinterested Directors. For purposes members of this Section 412(a), any the Board of Directors having no personal stake in such Affiliate Transaction shall be deemed to have satisfied (and such majority determines that such Affiliate Transaction satisfies the requirements set forth criteria in this Section 412(aclause (i) if above) and (xiii) in the event such Affiliate Transaction involves an aggregate amount in excess of $10 million, the Issuer has received a written opinion from a nationally recognized independent investment banking firm, or nationally recognized accounting or appraisal firm, that such Affiliate Transaction is approved by fair to the Issuer and its Restricted Subsidiaries from a majority financial point of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) view. The provisions of Section 412(a) the foregoing paragraph shall not apply to:
prohibit (i) any Restricted Payment Transaction,
permitted to be made pursuant to Section 4.06, (1ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors and otherwise permitted under this Indenture, (iii) the entering into, maintaining grant of stock options or performance similar rights to employees and directors of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into the Issuer in the ordinary course of businessbusiness pursuant to plans approved by the Board of Directors, including vacation, health, insurance, deferred compensation, severance, retirement, savings and otherwise permitted under this Indenture (iv) loans or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, advances to employees, officers or directors employees in the ordinary course of businessbusiness in accordance with the past practices of the Issuer or its Restricted Subsidiaries, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time, (3v) the payment of reasonable fees to directors of the Company or any of Issuer and its Restricted Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business who are not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate employees of the Company,
Issuer or its Restricted Subsidiaries, (vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Issuer and a Wholly Owed Subsidiary or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture between Wholly Owned Subsidiaries or similar entity,
(vii) the execution, delivery and performance payment of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsInvestment Banking Fees.
Appears in 2 contracts
Sources: Indenture (Classic Communications Inc), Indenture (Black Creek Management LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Each of the Issuer and Sweetheart Holdings will not, and shall will not permit any Restricted Subsidiary of their Subsidiaries to, directly sell, lease, transfer or indirectlyotherwise dispose of any of its properties or assets to, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or Guarantee with, or for the rendering of any service) with benefit of, any Affiliate (each of the Company (foregoing, an “"Affiliate Transaction”) unless (i) the "), except on terms of such Affiliate Transaction that are not materially no less favorable to the Company Issuer, Sweetheart Holdings or such Restricted Subsidiary, as the case may be, relevant Subsidiary than those that could be would have been obtained at the time in a comparable transaction by the Issuer, Sweetheart Holdings or such Subsidiary with a Person person who is not such an Affiliate Affiliate; provided, however, that (i) transactions between or among the Issuer, Sweetheart Holdings and their respective Subsidiaries, which are not otherwise prohibited by this Indenture, (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 millionany employment agreement entered into by Sweetheart Holdings, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors Issuer or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors their respective Subsidiaries in the ordinary course of business, (3iii) Permitted Investments and transactions permitted by Section 4.07 hereof, and (iv) provision of administrative or management services by the payment of reasonable fees to directors of the Company Issuer or Sweetheart Holdings or any of its their officers to any of their respective Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction Unrestricted Subsidiaries in the ordinary course of business, or approved by a majority of in each case, shall not be deemed Affiliate Transactions. Notwithstanding the Board of Directorsforegoing and commencing the first fiscal year after the Securities are issued, between in no case shall the Company Issuer or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance its Subsidiaries pay Annual Compensation to ▇▇▇▇▇▇ ▇▇▇▇▇▇ in excess of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactions.1.0
Appears in 2 contracts
Sources: Indenture (Sweetheart Holdings Inc \De\), Indenture (Sweetheart Holdings Inc \De\)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or conduct make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including guarantee with, or for the purchasebenefit of, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Parent (each, an “Affiliate Transaction”) unless (i) the terms or series of such Affiliate Transaction are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, transactions having a value greater than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 2.5 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply tounless:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business Affiliate Transaction is on terms not materially that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that reasonably could be obtained at the time of such transaction in arm’s-length dealings in a comparable transaction with a Person who that is not an Affiliate; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Parent shall have received an opinion as to the fairness to the Parent and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view or that such Affiliate Transaction is not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate issued by an accounting, appraisal or investment banking firm of the Company,international standing.
(vib) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.13(a):
(i) any transaction employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and compensation (including bonuses and equity compensation) paid to and other benefits (including retirement, health and other benefit plans) and indemnification arrangements provided on behalf of directors, officers and employees of the Parent or any Restricted Subsidiary;
(ii) transactions between or among or primarily for the benefit of the Parent and/or its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Equity Interests of the Parent, restricted share plans, long-term incentive plans, share appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees approved by the Board of Directors;
(v) Guarantees issued by the Parent or a majority Restricted Subsidiary in accordance with Section 4.3 (Incurrence of Indebtedness and Issuance of Preferred Stock);
(vi) the performance of obligations of the Parent or any Restricted Subsidiary under the terms of any agreement to which the Parent or any Restricted Subsidiary is a party on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time; provided, however, that any future amendment, modification, supplement, extension or renewal entered into after the Issue Date shall be permitted to the extent that its terms, taken as a whole, are not more materially disadvantageous to the Holders than the terms of the agreements in effect on the Issue Date;
(vii) any issuance of Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of the Parent;
(viii) any Restricted Payment that does not violate the provisions of Section 4.4 (Limitation on Restricted Payments) of this Indenture or Permitted Investments;
(ix) loans or advances to employees in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding;
(x) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Parent and/or one or more Restricted Subsidiaries, on the one hand, and any other Person with which the Parent or such Restricted Subsidiaries are required or permitted to file a consolidated tax return or with which the Parent or such Restricted Subsidiaries are part of a consolidated group for tax purposes, on the other hand, provided that any payments by the Parent and the Restricted Subsidiaries required under such agreement are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(xi) transactions contemplated by supply, purchase or sale agreements with suppliers or purchasers or sellers of goods or services (other than the Parent or its Restricted Subsidiaries) in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are in the aggregate fair to the Parent or the Restricted Subsidiaries, in the reasonable determination of the Board of Directors, between the Company Directors or any Restricted Subsidiary and any Affiliate senior management of the Company controlled by the Company that is a joint venture Parent, or similar entity,are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(viixii) any of the transactions contemplated in the Restructuring Transactions; and
(xiii) the execution, delivery granting and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment to CDR or any Affiliate SEC registration rights for securities of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and
(viii) the Transactions, all transactions in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsParent.
Appears in 2 contracts
Sources: Indenture (Latchey LTD), Indenture (CEDC Finance Corp LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $12.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 24.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Board of Directors. For purposes of this Section 412(a)paragraph, any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(asubsection 7.6(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(asubsection 7.6(a) shall above will not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former employee, officer officer, director or director consultant of or to the Borrower, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to any such employees, officers officers, directors or directors consultants in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company Borrower or any of its Subsidiaries or any Parent (as determined in good faith by the Company Borrower, such Subsidiary or such SubsidiaryParent), (4) any transaction with an officer or director of the Borrower or any of its Subsidiaries or any Parent in the ordinary course of business not involving more than $100,000 1.2 million in any one case, or (5) Management Advances and payments in respect thereofthereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction with between or among any of the CompanyBorrower, any one or more Restricted Subsidiary Subsidiaries and/or one or any Receivables Entitymore Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue DateClosing Date (other than any Tax Sharing Agreement or Management Agreement or the Consulting Services Agreement referred to in subsection 7.6(b)(vii) below), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the CompanyBorrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company Borrower or any Restricted Subsidiary and any Affiliate of the Company Borrower controlled by the Company Borrower that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and (A) any Management Agreements, including (1B) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the TransactionsTax Sharing Agreement, (C) any Tax Receivable Agreement and (2D) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management the Consulting Services Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to the Company and its Restricted Subsidiaries, and,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or capital contribution to the Borrower, and
(x) any investment by any Investor in securities of the Borrower or any of its Restricted Subsidiaries so long as (i) such securities are being offered generally to other investors on the same or more favorable terms and (ii) such investment by all Investors constitutes less than 5% of the proposed or outstanding issue amount of such class of securities.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Us LBM Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, enter into or conduct permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property property, employee compensation arrangements or the rendering of any service) with any Affiliate of the Company its Affiliates (an “"Affiliate Transaction”") unless (i) the terms of such Affiliate Transaction thereof
(1) are not materially no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time of such transaction in a transaction arm's-length dealings with a Person who is not an Affiliate;
(2) if such Affiliate Transaction (or series of related Affiliate Transactions) involve aggregate payments in an amount in excess of $10 million in any one year, (x) comply with the terms described in clause (1) and (y) have been approved by a majority of the Companydisinterested members of the Board of Directors; and
(3) if such Affiliate Transaction (or series of related Affiliate Transactions) involve aggregate payments in an amount in excess of $20 million in any one year, (x) comply with the terms described in clause (2) and (y) have been determined by a nationally recognized investment banking, accounting or qualified appraisal firm to be fair, from a financial standpoint, to the Company and its Subsidiaries. The provisions described above will not prohibit
(1) any issuance of securities or any payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans and other stock-based employee compensation in the ordinary course of business and approved by the Board of Directors,
(vi2) the grant of stock options or similar rights to the Company's employees, officers and directors or those of any transaction of its Subsidiaries in the ordinary course of business and pursuant to plans approved by the Board of Directors,
(3) loans or advances to the Company's employees, officers or directors or those of any of its Subsidiaries in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii4) fees, compensation or employee benefit arrangements paid to and indemnity provided for the executionbenefit of the Company's directors, delivery and performance officers or employees or those of any Tax Sharing Agreement and any Management Agreements, including of its Subsidiaries in the ordinary course of business,
(15) payment to CDR or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees in connection with any acquisition, merger, recapitalization or similar transaction as provided in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect to Transaction between the Company and its Restricted SubsidiariesSubsidiary or Joint Venture, or between any of its Subsidiaries or Joint Ventures (so long as the other stockholders or partners of any participating Subsidiaries or Joint Ventures which are not the Company's wholly owned Subsidiaries are not themselves the Company's Affiliates) and
(viii6) any transactions effected pursuant to agreements in effect on the TransactionsIssue Date; PROVIDED, all that such transactions are effected pursuant to terms substantially similar to the terms of such agreements as in connection therewith (including effect on the financing thereof), and all fees and expenses paid or payable in connection with the TransactionsIssue Date.
Appears in 1 contract
Sources: Indenture (Ceridian Corp)
Limitation on Transactions with Affiliates. (a) The Notwithstanding Section 4.14(b) on or prior to the Merger and Release, the Company will not enter into or suffer to exist any Affiliate Transaction (as defined below) other than to the extent necessary to consummate the Escrow Agreement, the Merger and Release or the Special Mandatory Redemption and the transactions contemplated by the Senior Subordinated Notes Escrow Arrangements, the Credit Facility Escrow Arrangements and the preferred stock investment in Parent (or a common equity investment in Parent in lieu of all or any portion thereof). From and after the Merger and Release, the Company shall not, and shall not permit any Restricted Subsidiary to, directly conduct any business or indirectly, enter into or conduct suffer to exist any transaction or series of related transactions (including the purchase, sale, lease transfer, assignment, lease, conveyance or exchange of any property Property or the rendering of any service) with with, or for the benefit of, any Affiliate of the Company (an “"Affiliate Transaction”) unless "), unless:
(i1) the terms of such Affiliate Transaction are not materially are:
(i) set forth in writing, and
(ii) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a comparable arm's-length transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Disinterested Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) shall not apply to:
(i) any Restricted Payment Transaction,
(1) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any employee, officer or director heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) the payment of compensation, performance of indemnification or contribution obligations, or any issuance, grant or award of stock, options, other equity-related interests or other securities, to employees, officers or directors in the ordinary course of business, (3) the payment of reasonable fees to directors of the Company or any of its Subsidiaries (as determined in good faith by the Company or such Subsidiary), (4) any transaction with an officer or director in the ordinary course of business not involving more than $100,000 in any one case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi2) if such Affiliate Transaction involves aggregate payments or value in excess of $5 million, each of the Board of Directors of the Company and the Board of Directors of Parent (including a majority of the disinterested members of the Board of Directors of Parent or, if there is only one disinterested director, such disinterested director) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (a)(1)(ii) of this Section 4.14 as evidenced by a Board Resolution, and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $25 million, the Company obtains a written opinion from an Independent Financial Advisor to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair, from a financial point of view, to the Company and the Restricted Subsidiaries, taken as a whole.
(b) Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may make, enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(2) any Restricted Payment permitted to be made pursuant to Section 4.10 or any Permitted Investment;
(3) the payment of compensation (including awards or grants in cash, securities or other payments) for the personal services of officers, directors, consultants and employees of the Company or any of the Restricted Subsidiaries in the ordinary course of business;
(4) payments pursuant to employment agreements, collective bargaining agreements, employee benefit plans, or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements and retirement or savings plans, stock option, stock ownership and similar plans so long as the Board of Directors of the Company or the Board of Directors of Parent in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation to be fair consideration therefor;
(5) loans and advances to officers, directors or employees (or guarantees of third party loans to officers, directors or employees) made in the ordinary course of business, provided that such loans and advances do not exceed $10 million in the aggregate at any one time outstanding;
(6) any agreement as in effect on the Issue Date or any amendment to any such agreement (so long as any such amendment is not disadvantageous to the Holders of the Senior Notes in any material respect) or any transaction contemplated thereby;
(7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; provided that such transactions are approved by a majority of the Board of DirectorsDirectors of Parent and the Board of Directors of the Company in good faith (including a majority of disinterested directors of the Board of Directors of Parent, between or if there is only one disinterested director, such director);
(8) the issuance and sale of Capital Stock (other than Disqualified Stock) of the Company;
(9) transactions in connection with or payments by the Company or any of its Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, including (1) payment Subsidiaries to CDR ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. or any Affiliate of CDR of a fee of up to $18.0 million plus out-of-pocket expenses in connection with the Transactions, and (2) payment to CDR or any Affiliate of CDR of fees of up to $2.0 million in any fiscal year, and fees their respective affiliates in connection with any acquisitionmanagement, mergerfinancial advisory, recapitalization financing, derivative, underwriting or placement services or any other investment banking, banking, asset management or similar transaction services including principal, interest and fees on loans which payments are approved by a majority of the Board of Directors of Parent and the Board of Directors of the Company in good faith (including a majority of disinterested directors of the Board of Directors of Parent, or if there is only one disinterested director, such director);
(10) transactions pursuant to any agreement described in the Offering Memorandum as provided in effect on the date of this Indenture or the date of the consummation of the Acquisition as the same may be amended from time to time in any such Management Agreement, plus all out-of-pocket expenses incurred by CDR or any such Affiliate in connection with its performance of management consulting, monitoring, financial advisory or other services with respect manner not materially less favorable to the Company and its Restricted Subsidiaries, Holders of the Senior Notes; and
(viii11) the Transactions, all transactions sales or transfer of dispositions of Receivables and Related Assets to a Securitization Entity and acquisitions of Investments in connection therewith (including the financing thereof), and all fees and expenses paid or payable in connection with the Transactionstherewith.
Appears in 1 contract
Sources: Indenture (Donnelley R H Inc)