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, renew, amend or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of any of their respective Affiliates (each, an “Affiliate Transaction”), unless: (1) such Affiliate Transaction, taken as a whole, is on terms which are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party; (2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and (3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be. (b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to: (1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries; (2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09; (3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business; (4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year; (5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder); (6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness); (7) a provision or purchase of goods or services in the ordinary course of business; and (8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 3 contracts
Sources: Indenture (Language Line Holdings, Inc.), Indenture (Language Line Costa Rica, LLC), Indenture (Atlantic Broadband Management, LLC)
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, conduct make any business 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 intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of the Company or any Restricted Subsidiary of their respective Affiliates the Company (each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
A. with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million2.5 million (other than an Ordinary Course Affiliate Transaction), a Board Resolution set forth in an Officer’s Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies Company;
B. with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million10.0 million (other than an Ordinary Course Affiliate Transaction), an opinion as to the fairness to the Company or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing; and
C. with respect to the Company any Ordinary Course Affiliate Transaction or the Restricted Subsidiary involved series of related Ordinary Course Affiliate Transactions involving aggregate consideration in such Affiliate Transactionexcess of $10.0 million, as the case may be.
(b) Notwithstanding the foregoing, the restrictions a Board Resolution set forth in an Officer’s Certificate certifying that such Ordinary Course Affiliate Transaction complies with this Section 4.13 shall covenant and that such Ordinary Course 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 apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions with any employment agreement, employee benefit plan, officer or among director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and any Restricted Subsidiary or between or among Restricted Subsidiariespayments pursuant thereto;
(2) any Permitted Investment and any Restricted Payment transactions exclusively between or other payment or Investment permitted to be made pursuant to Section 4.09among the Company and/or the Guarantors;
(3) any issuance [reserved];
(4) payment of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant reasonable directors’ fees to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company and made or its Restricted Subsidiaries;
(5) Restricted Payments that do not violate the provisions of this Indenture described under Section 5.07 hereof;
(6) loans or advances to employees in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount compliance with applicable law, not to exceed $1.0 million in the aggregate at any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);one time outstanding; and
(7) a provision or purchase of goods or services any agreement as in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence effect on the Original Issue Date or any amendments, renewals or extensions of any such agreement (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendmentamendments, modification renewals or replacement is no extensions are not less favorable to the Company and the Restricted Subsidiaries in any material respectHolders).
Appears in 3 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Limitation on Transactions with Affiliates. (a) The Company shall Holdings will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any Holdings (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to Holdings or the Company relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by Holdings or such Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, Holdings delivers to the Trustee a resolution adopted by the majority of the Board of Directors of Holdings approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, Holdings must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to Holdings or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view. The foregoing limitations do not limit, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with Restricted Payments that are permitted by Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary compensation and indemnities and other benefits (including retirement, health, option, deferred compensation and other benefit plans) to members of the Board of Directors of Holdings or among a Restricted Subsidiary;
(3) the Company payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of Holdings or any Restricted Subsidiary or Subsidiary;
(4) transactions between or among Holdings and/or its Restricted Subsidiaries;
(25) any Permitted Investment agreement or arrangement as in effect on the Issue Date and any Restricted Payment amendment or other payment modification thereto so long as such amendment or Investment permitted modification is not more disadvantageous to be made pursuant to Section 4.09the Holders of the Notes in any material respect;
(36) any issuance contribution of Qualified Capital Stock of the Company, capital to Holdings or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of businessany Restricted Subsidiary;
(47) advances to officerstransactions permitted by, directorsand complying with Article V hereof;
(8) any transaction with a joint venture, employees and consultants who are not otherwise Affiliates of the Company made partnership, limited liability company or other entity in the ordinary course of business and that would constitute an Affiliate Transaction solely because Holdings or a Restricted Subsidiary owns an equity interest in an amount not to exceed $1.0 million in any calendar yearsuch joint venture, partnership, limited liability company or other entity;
(59) the payment of reasonable directors’ feestransactions with customers, indemnification and similar arrangementsclients, consulting fees, employee salaries, bonuses suppliers or employment agreements, compensation purchasers 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 reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase sellers of goods or services services, in each case, on terms that are not materially less favorable to Holdings or such Restricted Subsidiary, as the ordinary course case may be, as determined in good faith by Holdings, than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of businessHoldings; and
(8) any 10) transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), effected as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectpart of a Qualified Receivables Transaction.
Appears in 3 contracts
Sources: Indenture (Spirit AeroSystems Holdings, Inc.), Indenture (Spirit AeroSystems Holdings, Inc.), Indenture (Spirit AeroSystems Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Guarantor will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions arrangement (including including, without limitation, the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any Affiliate of the Parent Guarantor or for the benefit of any of their respective Affiliates Restricted Subsidiary (each, each an “Affiliate Transaction”), unless:
(1i) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Parent Guarantor or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not an Affiliate of the Parent Guarantor or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;; and
(2ii) if such the Parent Guarantor delivers to the Trustee:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 millionU.S.$15.0 million (or the Dollar Equivalent thereof), a Board Resolution or an approval by the audit committee of the Parent Guarantor set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors Directors, or by a majority of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with members of the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transactionaudit committee, as the case may beapplicable; and
(32) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionU.S.$30.0 million (or the Dollar Equivalent thereof), in addition to the Board Resolution required in clause (1) of this Section 4.1(e)(ii), an opinion as to the fairness to the Parent Guarantor or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an internationally recognized accounting, appraisal or investment banking firm; provided that the Parent Guarantor will not be required to obtain the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions fairness opinion set forth in this Section 4.13 shall 4.1(e)(ii)(2) while at least 25% of the equity securities of the Parent Guarantor at such time is registered with the SEC and listed on the New York Stock Exchange or on the NASDAQ, directly or in the form of American Depositary Receipts. The foregoing limitation does not limit, and will not apply to:
(1i) the payment of reasonable fees, compensation, benefits or indemnity to officers, employees and directors of the Parent Guarantor or any of its Restricted Subsidiaries;
(ii) transactions with between or among the Company Parent Guarantor, the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2iii) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to by Section 4.094.1(b);
(3iv) transactions with customers, clients, suppliers, distributors, generators, transporters or purchasers or sellers of goods or services, in each case in the ordinary course of business;
(v) loans and advances to officers, directors and employees of the Parent Guarantor or any Subsidiary in the ordinary course of business in an aggregate principal amount not exceeding U.S.$2.0 million at any time; and
(vi) any issuance of Qualified Capital Stock of the Companysecurities, or other payments, awards or grants in cash, Qualified securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock Stock, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers, directors and employees of the Company Parent Guarantor or otherwise, pursuant to employment arrangements or stock option plans for any of its subsidiaries approved by the benefit Board of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Directors in an aggregate amount not to exceed $1.0 U.S.$1.5 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt Dollar Equivalent thereof) during any fiscal year, calculated at the time of the proceeds of capital contributions such award or grant and without giving effect to subsequent changes in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectvalue.
Appears in 2 contracts
Sources: Indenture (Camposol Holding PLC), Indenture (Camposol Holding PLC)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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 intointo or make or amend any contract, renewagreement, amend understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (other than the Company, a Wholly Owned Restricted Subsidiary or (in connection with a Qualified TIPS Transaction) a Qualified Finance Subsidiary) (each of any of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than would be available those that could have been obtained in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
unrelated Person and (2ii) if such the Company delivers to the Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 5 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined an Officers' Certificate certifying that such Affiliate Transaction complies with the foregoing provisions, or, in the event clause (i) above and that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from has been approved by a financial point majority of view, the Disinterested Directors and (b) with respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 10 million, such Affiliate Transaction is both an Officers' Certificate referred to in writing clause (a) and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms fairness of such Affiliate Transaction are fair, to the Company or the relevant Restricted Subsidiary from a financial point of viewview issued by an investment banking firm of national standing with total assets in excess of $1.0 billion; PROVIDED, to the Company or the Restricted Subsidiary involved in such Affiliate TransactionHOWEVER, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in that this Section 4.13 covenant shall not apply to:
to (1i) transactions with fees, compensation and employee benefits, including bonuses, retirement plans and stock options, paid to or among the Company established for directors and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock officers of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made any Restricted Subsidiary in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
approved by a majority of the Disinterested Directors and (5ii) the payment of reasonable 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 performance by the Company or any Restricted Subsidiary entered into in of its obligations under certain leases of real property outstanding on the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock date of the Company or the receipt of the proceeds of capital contributions Indenture from PDM, Inc. covering 10 supermarket sites and a storage facility in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence Omaha, Nebraska as set forth on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectSchedule B attached hereto.
Appears in 2 contracts
Sources: Indenture (Fleming Companies Inc /Ok/), Indenture (Fleming Companies Inc /Ok/)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $2.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms that are not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Company;
(6) any agreement or arrangement as in effect on the Issue Date (other than the Management Agreement) and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the holders of the Notes in any material respect;
(7) transactions approved by the majority of Disinterested Directors in which the Company delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders 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 that it may enter into thereafter; provided, however, 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 (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes in any material respect as determined in good faith by the Board of Directors of the Company;
(9) the transactions described in the Offering Memorandum and the payment of all fees and expenses in connection therewith;
(10) any contribution of capital to the Company;
(11) transactions permitted by, and complying with, Section 5.1;
(12) transactions with any joint venture; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(13) transactions with Affiliates solely in their capacity as holders of Debt or Capital 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;
(14) the entering into of any tax sharing, allocation or similar agreement and any payments by the Company (or any other direct or indirect parent of the Company) or any of the Restricted Subsidiaries pursuant to any tax sharing, allocation or similar agreement; provided that the amount of such payments for any fiscal year shall not exceed the amount of taxes that the Company and its Restricted Subsidiaries would be required to pay with respect to such fiscal year on a separate stand-alone basis;
(15) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Company;
(216) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, payment to the Company or the Restricted Subsidiary involved in such Affiliate TransactionPermitted Holders and any of their Affiliates of annual management, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionconsulting, such Affiliate Transaction is in writing monitoring and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, advisory fees pursuant to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Management Agreement in an aggregate amount not to exceed $1.0 5.0 million in any calendar per year, and reasonable related expenses;
(517) the payment transactions effected as part of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of a Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessReceivables Transaction; and
(8) 18) any transactions undertaken pursuant to agreement between any contractual obligations in existence on Person and an Affiliate of such Person existing at the Issue Date (time such Person is acquired by or on merged or consolidated with or into the Closing Date and entered into in connection with the Transactions)Company or a Restricted Subsidiary, as the same such agreement may be amended, modified modified, supplemented, extended or replaced renewed from time to time time; provided that such agreement was not entered into contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification modification, supplement, extension or replacement renewal, when taken as a whole, is no less favorable not more disadvantageous to the Company and holders of the Restricted Subsidiaries Notes in any material respect, than the applicable agreement as in effect on the date of such acquisition, merger or consolidation.
Appears in 2 contracts
Sources: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
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 make any payment to, or indirectlysell, conduct lease, assign, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 25.0 million, such Affiliate Transaction is in writing and a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value have determined in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating good faith that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions criteria set forth in this Section 4.13 shall the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a Board Resolution. The following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions any transaction with the Company, a Restricted Subsidiary, an Investment Vehicle or among joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company and any or a Restricted Subsidiary owns an equity interest in or between otherwise controls such Restricted Subsidiary, joint venture or among Restricted Subsidiariessimilar entity;
(2) any Restricted Payments and Permitted Investment and any Restricted Payment or other payment or Investment Investments (including Seed Capital Investments) permitted to be made pursuant to Section 4.09by this Indenture;
(3) the payment by the Company or any issuance of Qualified Capital Stock its Restricted Subsidiaries of management, consulting, monitoring and advisory fees, termination or indemnification payments and related reasonable expenses pursuant to the Management Agreement;
(4) payments in respect of reasonable employment, severance and any other compensation arrangements with, and fees and reasonable expenses paid to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or other paymentsindirect parent companies, awards or grants in cashany Restricted Subsidiary, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(45) advances to officerspayments made by the Company or any Restricted Subsidiary for any financial advisory, directorsfinancing, employees and consultants who underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are not otherwise Affiliates approved by majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction) in good faith;
(6) transactions in which the Company or any Restricted Subsidiary 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 meets the requirements of clause (i) of the first paragraph of this Section 4.11;
(7) payments or loans (or cancellations of loans) to employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiary which are approved by the Board of Directors of the Company in good faith and which are otherwise permitted under this Indenture;
(8) payments made or performance under any agreement as in effect on the Issue Date (other than the Management Agreement (which is permitted under clause (3) of the second paragraph of this Section 4.11), including additional parties that may be added subsequent to the Issue Date and any amendment thereto to the extent such an amendment is not adverse to the interests of the Holders of the Notes in any material respect;
(9) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services (including Parent and its Subsidiaries), in each case in the ordinary course of business and otherwise in an amount not compliance with the terms of this Indenture that are fair to exceed $1.0 million the Company or its Restricted Subsidiaries, in any calendar year;
(5) the payment reasonable determination of reasonable 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 the members of the Board of Directors of the Company or any Restricted Subsidiary the senior management thereof, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(10) if otherwise permitted hereunder, the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company (other than a Subsidiary);
(11) any transaction permitted by Section 5.1;
(12) any transaction with a Receivables Subsidiary effected as part of a Receivables Facility;
(13) the Transactions and the payment of the Transaction Expenses;
(14) payments by the Company and its Restricted Subsidiaries to each other pursuant to tax sharing agreements or arrangements among Parent and its subsidiaries on customary terms (including, without limitation, transfer pricing initiatives);
(15) payments to investment and commercial banks (or their affiliates) for financial advisory and other investment and commercial banking services and financings provided by them in the ordinary course of business (including reasonable benefits thereunder)on ordinary commercial terms;
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 2 contracts
Sources: Indenture (Nuveen Investments Holdings, Inc.), Indenture (Nuveen Investments Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate involving aggregate consideration in excess of any of their respective Affiliates $5.0 million on or after the Issue Date (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Issuer or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Issuer or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is complies with this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in writing and excess of $25.0 million, an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any consulting, severance or employment agreement or arrangement entered into by the Issuer or any of its Restricted Subsidiaries approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted SubsidiariesIssuer;
(2) any Permitted Investment transactions (i) between or among the Issuer and/or the Guarantors, (ii) between or among Restricted Subsidiaries that are not Guarantors; and any Restricted Payment (iii) between or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of among the CompanyIssuer and the Guarantors, or other payments, awards or grants in cash, Qualified Capital Stock of on the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directorsone hand, and consultants who Restricted Subsidiaries that are not otherwise Affiliates of Guarantors, on the Company and made other hand, in the ordinary course of business;
(3) payment of reasonable directors fees to directors of the Issuer and any Parent and the provision of customary indemnities to directors, officers, employees or consultants of the Issuer, and any Parent or any Restricted Subsidiary;
(4) advances issuances and sales of Equity Interests (other than Disqualified Stock) to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Issuer;
(5) any tax sharing agreement or arrangement and payments pursuant thereto among the Issuer and its Subsidiaries and any other Person with which the Issuer or its Subsidiaries is required or permitted to file a consolidated, combined or unitary tax return or with which the Issuer or any of its Restricted Subsidiaries is or could be part of a consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited by this Indenture;
(6) Restricted Payments that are permitted by Section 4.11 or any Permitted Investment;
(7) loans to employees that are approved in good faith by a majority of the ordinary course Board of business and Directors of the Issuer in an amount not to exceed $1.0 5.0 million in outstanding at any calendar year;
(5) the payment of reasonable directors’ fees, indemnification time and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements advances 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 reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services expense reimbursements to employees in the ordinary course of business; and;
(8) any transactions undertaken pursuant to any contractual obligations in existence agreements (and payments relating thereto) existing on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)Date, as the same may be amended, modified or replaced from time to time time, so long as such any amendment, modification or replacement is no not materially less favorable to the Company Issuer and the its Restricted Subsidiaries than the agreement in effect on the Issue Date;
(9) transactions with a joint venture engaged in a Permitted Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Issuer, its Restricted Subsidiaries and Persons who are not Affiliates of the Issuer;
(10) transactions between a Receivables Subsidiary and any material respectPerson in which the Receivables Subsidiary has an Investment;
(11) transactions with customers, clients, suppliers or purchasers or sellers of goods, in each case in the ordinary course of business; and
(12) transactions which have been approved by a majority of the disinterested members of the Board of Directors and with respect to which an Independent Financial Advisor has delivered an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such transaction from a financial point of view.
Appears in 2 contracts
Sources: Indenture (Nortek Inc), Indenture (Nortek Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Issuers will not, and shall will not cause or permit any Restricted Subsidiary of their Subsidiaries to, directly or indirectly, conduct any business enter into or enter into, renew, 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 of any assets or the rendering of any serviceservices) with or for the benefit of any of their respective Affiliates Affiliate (each, an “"AFFILIATE TRANSACTION") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction”), unless:
Transaction entered into prior to the Issue Date unless (1i) such Affiliate TransactionTransaction is between or among the Issuers and their Wholly Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and reasonable to the Issuers or such Sub- 50 sidiary, taken as a wholethe case may be, is on and the terms of such Affiliate Transaction are at least as favorable as the terms which are no less favorable to could be obtained by the Company Issuers or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction made on an arm’sarm's-length basis with an between unaffiliated third party;
(2) if such parties. In any Affiliate Transaction (or any series of related Affiliate Transactions involves aggregate payments which are similar or other consideration part of a common plan) involving an amount or having a Fair Market Value fair market value in excess of $5.0 million1 million which is not permitted under clause (i) above, such Affiliate Transaction is in writing and the Issuers must obtain a majority of the disinterested members resolution of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined Issuers certifying that such Affiliate Transaction complies with the foregoing provisions, or, clause (ii) above. 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 the event that there are no disinterested directorsexcess of $5 million which is not permitted under clause (i) above, the Trustee has received Issuers must obtain a favorable written opinion from an Independent Financial Advisor stating that as to the terms fairness of such Affiliate Transaction are fair, from a financial point of view, to the Company transaction or the Restricted Subsidiary involved in such Affiliate Transactiontransactions, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall Advisor. The foregoing provisions will not apply to:
to (1i) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment that is not prohibited by the provisions of Section 4.03, or other payment or Investment permitted to be made pursuant to Section 4.09;
(3ii) any issuance reasonable fees, compensation and equity incentives in the form of Qualified Capital Stock of the Company, or (other payments, awards or grants in cash, Qualified than Disqualified Capital Stock of the Company or otherwise, pursuant Stock) paid to employment arrangements or stock option plans for the benefit of employeesand indemnity provided on behalf of, officers, directors, and consultants who are not otherwise Affiliates directors or employees of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates Issuers or any Subsidiary of the Company made Issuers as determined in good faith by the ordinary course Company's Board of business and Directors or senior management or (iii) any agreement as in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 effect as of the Company Issue Date or any Restricted Subsidiary entered into in the ordinary course of business amendment thereto or any transaction contemplated thereby (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations amendment thereto) in existence any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the holders in any material respect than the original agreement as in effect on the Issue Date or (or on the Closing Date and entered into in connection iv) any affiliation agreements with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectWB Television Network.
Appears in 2 contracts
Sources: Indenture (Acme Intermediate Holdings LLC), Indenture (Acme Television LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Abraxas will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend or conduct permit or suffer to exist any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any assets property, the guaranteeing of any Indebtedness or the rendering of any service) with with, or for the benefit of of, any of their respective Affiliates (each, each an “"Affiliate Transaction”"), unless:
other than (1i) such Affiliate Transaction, taken as a whole, is Transactions permitted under Section 4.11(b) and (ii) Affiliate Transactions that are on terms which that are fair and reasonable to Abraxas or the applicable Restricted Subsidiary and are no less favorable to Abraxas or the Company applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of Abraxas or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1,000,000 shall be approved by the Board of Directors of Abraxas, such approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such transaction complies with the foregoing provisions. If Abraxas or any Restricted Subsidiary enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $10,000,000, Abraxas shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to Abraxas or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Advisor and file the same with the Trustee.
(b) The restrictions set forth in Section 4.11(a) shall not apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of Abraxas or any Restricted Subsidiary as determined in good faith by the Board of Directors or senior management of Abraxas or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
; (2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1ii) transactions with or among the Company and any Restricted Subsidiary or exclusively between or among Abraxas and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company; provided, or other paymentshowever, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who that such transactions are not otherwise Affiliates of the Company prohibited by this Indenture; and made in the ordinary course of business;
(4iii) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectPayments permitted by this Indenture.
Appears in 2 contracts
Sources: Indenture (Canadian Abraxas Petroleum LTD), Indenture (Canadian Abraxas Petroleum LTD)
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, conduct any business or enter into, renew, amend or conduct any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any assets property, the guaranteeing of any Indebtedness or the rendering of any service) with involving aggregate consideration in excess of $2.0 million with, or for the benefit of of, any of their respective Affiliates (each, each an “Affiliate Transaction”), unless:
(1) such other than Affiliate TransactionTransactions that are on terms that, taken as a whole, is on terms which are fair and reasonable to the Company or the applicable Restricted Subsidiary from a financial point of view, or are no less favorable to the Company or such the applicable Restricted Subsidiary, as the case may be, Subsidiary than would be available those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis with from a Person that is not an unaffiliated third party;
(2) if Affiliate of the Company or such Restricted Subsidiary. Any Affiliate Transaction or (and each series of related Affiliate Transactions which are part of a common plan) that involves aggregate payments or other consideration having property with a Fair Market Value in excess of $5.0 million25.0 million shall be approved by the Board of Directors of the Company, such Affiliate Transaction is in writing and including a majority of the disinterested members of the Board of Directors of the Company shall have approved Company, if any, such Affiliate Transaction and approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such Affiliate Transaction transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to . If the Company or the any Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such enters into an Affiliate Transaction (or a series of related Affiliate Transactions which are part of a common plan) that involves an aggregate payments or other consideration having a Fair Market Value in excess of more than $15.0 10.0 million, such Affiliate Transaction is in writing and the Company shall, prior to the consummation thereof, deliver an Officers’ Certificate to the Trustee has received a written opinion from an Independent Financial Advisor stating certifying that such transaction complies with the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the foregoing provision. The restrictions set forth in the second paragraph of this Section 4.13 covenant shall not apply to:
(1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary;
(2) transactions with exclusively between or among the Company and any of its Restricted Subsidiary Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09; provided, however, that such transactions are not otherwise prohibited by this Indenture;
(3) any Investment or other Restricted Payments permitted by this Indenture;
(4) any issuance of Qualified Capital Stock of the Company, securities or other payments, awards or grants in cash, Qualified Capital Stock securities or otherwise pursuant to, or the funding of, employment or severance arrangements, stock options and stock ownership, phantom stock or other incentive compensation plans approved by the Company;
(5) (a) loans or advances to officers, directors or employees in the ordinary course of business in accordance with the past practices of the Company or otherwiseits Restricted Subsidiaries, pursuant but in any event not to employment arrangements exceed $5.0 million in the aggregate outstanding at any one time; and (b) advances to or stock option plans for the benefit reimbursements of employees, officers, directorsdirectors or employees for moving, entertainment and consultants who are not otherwise Affiliates of the Company travel expenses, drawing accounts and made similar expenditures in the ordinary course of business;
(46) advances the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company, or the receipt by the Company of any capital contribution from the holders of its Capital Stock;
(7) transactions and arrangements in effect, or effected in accordance with agreements or arrangements in effect, on the Issue Date (including the Merger Transaction), including any modifications, extensions or renewals thereof that do not adversely affect the Company and its Restricted Subsidiaries, considered as a single enterprise in any material respect as compared to officersthe kinds of transactions, directors, employees and consultants who are not otherwise Affiliates arrangements or agreements in effect on the Issue Date;
(8) transactions with a Person that is an Affiliate of the Company made solely because the Company owns, directly or through a Subsidiary, an equity interest in, or controls, such Person;
(9) transactions with any joint venture or similar entity, which joint venture or similar entity is an Affiliate of the Company solely because an Affiliate of the Company is a general partner in such joint venture or similar entity; provided that Affiliates (all such Affiliates taken together) of the Company (other than the Company and its Restricted Subsidiaries) do not in the aggregate beneficially own or hold, directly or indirectly, 10% or more of any class of voting interests in such joint venture or similar entity;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business business, except for guarantees of Indebtedness in respect of borrowed money, and in an amount not to exceed $1.0 million in any calendar year;
(5b) the payment of reasonable 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 pledges by the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock in Unrestricted Subsidiaries for the benefit of the Company lenders or the receipt other creditors of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessUnrestricted Subsidiaries; and
(8) 11) any transactions undertaken pursuant to transaction in which the Company or any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)of its Restricted Subsidiaries, as the same case may be amendedbe, modified or replaced delivers to the Trustee a letter from time to time so long as an Independent Advisor stating that such amendment, modification or replacement transaction is no less favorable fair to the Company and or such Restricted Subsidiary from a financial point of view or that such transaction meets the Restricted Subsidiaries in any material respectrequirements of the first paragraph of this covenant.
Appears in 2 contracts
Sources: Indenture (Bonanza Creek Energy, Inc.), Indenture (Bonanza Creek Energy Operating Company, LLC)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving with respect to each such Affiliate Transaction or series of related Affiliate Transactions aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable, taken as a whole, to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company delivers to the Trustee a resolution adopted by the majority of the Board of Directors of the Company approving such Affiliate Transaction together with an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7;
(2) the provision of reasonable and customary compensation, indemnities, insurance and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary and others who are not otherwise Affiliates of the Company;
(3) the provision of reasonable and customary compensation and other benefits (including retirement, health, option, severance, deferred compensation and other benefit plans), indemnities and insurance to officers and employees of the Company or any Restricted Subsidiary in the ordinary course of business to the extent permitted by law;
(4) transactions between or among the Company and/or its Restricted Subsidiaries and transactions between or among the Company or any Restricted Subsidiary, on the one hand, and any Leasing Subsidiary, on the other hand, (including the contribution of overhead costs) in the ordinary course of business and consistent with past practice or constituting undertakings customary in lease securitization transactions for the benefit of any Leasing Subsidiary;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous, taken as a whole, in any material respect to the Holders of the Notes;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, Article V and Section 10.5 hereof;
(8) any transaction with a joint venture, partnership, limited liability company or other entity that constitutes an Affiliate solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case, in the ordinary course of business that are, in the aggregate (taking into account all of the costs and benefits associated with such transactions), on terms which that are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Company;
(210) if such Affiliate Transaction transactions effected as part of a Qualified Receivables Transaction;
(11) sales or series leases of related Affiliate Transactions involves aggregate payments goods to joint ventures and Affiliates (but excluding any officers or directors) in the ordinary course of business for less than fair market value but not for less than cost;
(12) any employment, severance or consulting agreement or other consideration having a Fair Market Value in excess of $5.0 millioncompensation agreement, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisionsarrangement or plan, oror any amendment thereto, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to entered into by the Company or the any of its Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made Subsidiaries in the ordinary course of business;
(413) advances sales of Capital Interests (excluding Capital Interests constituting Debt) to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearCompany;
(514) any transaction in which the payment Company or its Restricted Subsidiaries, as the case may be, deliver to the Trustee (a) a letter from an accounting, appraisal or investment banking firm of reasonable directorsnational standing stating that such transaction is fair to the Company or its Restricted Subsidiary from a financial point of view or that such transaction complies with clause (i) of the initial paragraph above and (b) an Officers’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements Certificate certifying that such transaction complies with any officer, director or employee clause (i) of the initial paragraph above; and
(15) transactions between the Company or any of its Restricted Subsidiary entered into in Subsidiaries and any Person, a director of which is also a director of the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock Company; provided that such director abstains from voting as a director of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of on any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as matter involving such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectother Person.
Appears in 2 contracts
Limitation on Transactions with Affiliates. (a) The Company shall Holdings will not, and shall will not cause or permit any Restricted Subsidiary to, directly sell, lease or indirectlyotherwise transfer any property or assets to, conduct or purchase, lease or otherwise acquire any business property or enter intoassets from, renewor otherwise engage in any other transactions with, amend any of its Affiliates, except:
(i) (A) transactions among Holdings, the Company or conduct any Subsidiary permitted under the terms of this Indenture and (B) transactions or series of related transactions involving aggregate payments or consideration, when taken together, of less than $1,000,000;
(ii) a transaction (other than any Asset Sale or any Restricted Payment) on terms substantially as favorable to Holdings or such Subsidiary as would be obtainable by Holdings or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate; provided that, if the such transaction or series of related transactions involves aggregate consideration in excess of (including the purchase, sale, lease or exchange of any assets or the rendering of any servicei) with or for the benefit of any of their respective Affiliates (each, an “Affiliate Transaction”), unless:
(1) $1,000,000 such Affiliate Transaction, taken as a whole, is on terms which are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having transactions shall be approved by a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing Board Resolution and a majority resolution certified by an authorized officer of the disinterested members of AMC to have been duly adopted by the Board of Directors of AMC and to be in full force and effect on the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms date of such Affiliate Transaction are faircertification, from and (ii) (A) $15,000,000, with respect to any transaction outside the ordinary course of business with AMC or any subsidiary of AMC other than the Centertainment Group Entities, or (B) $75,000,000 otherwise, a financial point of view, favorable opinion shall be given as to the Company fairness to Holdings or the Restricted such Subsidiary involved in of such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having transactions issued by a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiariesnationally recognized investment bank;
(2iii) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09[reserved];
(3iv) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of businessUK Holdco Intercompany Loan;
(4v) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Permitted Transactions;
(vi) payments in the ordinary course of business by Holdings and in an amount not the Subsidiaries pursuant to exceed $1.0 million in any calendar yeartax sharing agreements among Holdings and the Subsidiaries and their applicable respective Parent Entities on customary terms to the extent attributable to the ownership or operation by AMC of Holdings and the Subsidiaries, to the extent payments are permitted by Section 4.06;
(5vii) transactions contemplated by, and permitted under, the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Intercompany Agreements;
(6viii) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)[reserved];
(7ix) a provision Restricted Payments (excluding, for the avoidance of doubt, Permitted Investments) permitted under Section 4.06 or purchase Investments made pursuant to clauses (m) and (q) of goods the definition of “Permitted Investments”;
(x) [reserved];
(xi) [reserved];
(xii) Affiliate repurchases of Indebtedness under the Term Loan Obligations (to the extent permitted under agreements governing the Term Loan Obligations) or services the Notes, and the holding of such Indebtedness and the payments and other related transactions in respect thereof;
(xiii) Permitted Existing Debt Purchases and any dividend, distribution, loan or advance made or deemed made pursuant to the ordinary course terms of businessthe Buyback Letter;
(xiv) Existing Second Lien Notes Repurchases;
(xv) [reserved];
(xvi) loans, advances and other transactions between or among Holdings or any Subsidiary, on the one hand, and any Joint Venture (regardless of the form of legal entity), on the other, in which Holdings or any Subsidiary has invested (and which Joint Venture would not be an Affiliate of Holdings or any Subsidiary but for Holdings’ or such Subsidiaries’ ownership of Equity Interests in such Joint Venture) to the extent otherwise permitted; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectxvii) [reserved].
Appears in 2 contracts
Sources: Indenture (Amc Entertainment Holdings, Inc.), Indenture
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 50 million, a resolution of the Company's Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this Section 3.09 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the such Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 75 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Company of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:provisions of paragraph (a):
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of employment agreement on customary terms entered into by the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit any of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made its Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(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 an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors fees and in an amount not provision to exceed $1.0 million in any calendar yeardirectors, officers and employees of customary indemnities and customary benefits pursuant to employee benefit plans and similar arrangements;
(5) the payment sales of reasonable 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 Equity Interests (other than Disqualified Stock) to Affiliates of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Company;
(6) issuances (A) corporate sharing agreements among the Company and sales of Qualified Capital Stock its subsidiaries with respect to tax sharing and general overhead and other administrative matters and (B) any other intercompany arrangements disclosed or described in the Company's report on Form 10-K for the fiscal year ended December 31, 2002 (including the exhibits thereto) or the prospectus relating to the offering of the Company Notes, all as in effect on the date hereof, and any amendment or the receipt replacement of any of the proceeds of capital contributions foregoing so long as such amendment or replacement agreement is not less advantageous to the Company in any material respect of Qualified Capital Stock (including from than the proceeds of any Future ABRY Subordinated Indebtedness)agreement so amended or replaced, as such agreement was in effect on the date hereof;
(7) transactions entered into as part of a provision or purchase of goods or services in the ordinary course of businessPermitted Receivables Financing; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on Restricted Payments that are permitted by the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectprovisions of Section 3.03 hereof.
Appears in 2 contracts
Sources: Ninth Supplemental Indenture (Williams Companies Inc), Supplemental Indenture (Williams Companies Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $40.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 hereof and Permitted Investments permitted under this Indenture;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or reasonable and customary compensation and indemnities and other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested benefits to members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there or a Subsidiary who are no disinterested outside directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ feesand customary compensation and other benefits (including retirement, indemnification health, option, deferred compensation and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee other benefit arrangements plans) and incentive arrangements with any officer, director or employee indemnities to officers and employees of the Company or any Restricted Subsidiary entered into as determined by the Board of Directors thereof in the ordinary course of business (including reasonable benefits thereunder)good faith;
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 2 contracts
Sources: Indenture (Toys R Us Property Co II, LLC), Indenture (Toys R Us Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $40.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 hereof and Permitted Investments permitted under this Indenture;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or reasonable and customary compensation and indemnities and other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested benefits to members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there or a Subsidiary who are no disinterested outside directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance the payment of Qualified Capital Stock of the Companyreasonable and customary compensation and other benefits (including retirement, or health, option, deferred compensation and other payments, awards or grants in cash, Qualified Capital Stock benefit plans) and indemnities to officers and employees of the Company or otherwise, pursuant to employment arrangements or stock option plans for any Subsidiary as determined by the benefit Board of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made Directors thereof in the ordinary course of businessgood faith;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of transactions between or among the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearand/or its Subsidiaries;
(5) any agreement or arrangement as in effect on the payment Issue Date, including, without limitation, the Master Lease and the Services Agreement and any amendment or modification thereto so long as such amendment or modification (taken as a whole) is not materially disadvantageous to the Holders of reasonable directors’ feesthe Notes and in the case of the Master Lease, indemnification and similar arrangements, consulting fees, employee salaries, bonuses any amendments or employment agreements, compensation or employee benefit arrangements and incentive arrangements modification made in compliance with Section 4.17;
(6) any officer, director or employee contribution of capital to the Company;
(7) the issuance of Equity Interests (other than Disqualified Stock) of the Company to Parent or any Restricted Subsidiary Permitted Holder or to any director, officer, employee or consultant;
(8) transactions permitted by, and complying with, Article V;
(9) leases with any Affiliates (other than Parent or its Subsidiaries) entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 2 contracts
Sources: Indenture (Toys R Us Inc), Indenture (Toys R Us Property Co I, LLC)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $2.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms that are not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Company;
(6) any agreement or arrangement as in effect on the Issue Date (other than the Management Agreement) and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the holders of the Notes in any material respect;
(7) transactions approved by the majority of Disinterested Directors or in which the Company delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders 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 that it may enter into thereafter; provided, however, 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 (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes in any material respect as determined in good faith by the Board of Directors of the Company;
(9) the Transactions and the payment of all fees and expenses in connection therewith;
(10) any contribution of capital to the Company;
(11) transactions permitted by, and complying with, Section 5.1;
(12) transactions with any joint venture; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(13) transactions with Affiliates solely in their capacity as holders of Debt or Capital 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;
(14) the entering into of any tax sharing, allocation or similar agreement and any payments by the Company (or any other direct or indirect parent of the Company) or any of the Restricted Subsidiaries pursuant to any tax sharing, allocation or similar agreement; provided that the amount of such payments for any fiscal year shall not exceed the amount of taxes that the Company and its Restricted Subsidiaries would be required to pay with respect to such fiscal year on a separate stand-alone basis;
(15) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Company;
(216) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, payment to the Company or the Restricted Subsidiary involved in such Affiliate TransactionPermitted Holders and any of their affiliates of annual management, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionconsulting, such Affiliate Transaction is in writing monitoring and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, advisory fees pursuant to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Management Agreement in an aggregate amount not to exceed $1.0 5.0 million in any calendar yearper year and reasonable related expenses;
(517) the payment transactions effected as part of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of a Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessReceivables Transaction; and
(8) 18) any transactions undertaken pursuant to agreement between any contractual obligations in existence on Person and an Affiliate of such Person existing at the Issue Date (time such Person is acquired by or on merged or consolidated with or into the Closing Date and entered into in connection with the Transactions)Company or a Restricted Subsidiary, as the same such agreement may be amended, modified modified, supplemented, extended or replaced renewed from time to time 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 modification, supplement, extension or replacement renewal, when taken as a whole, is no less favorable not more disadvantageous to the Company and holders of the Restricted Subsidiaries Notes in any material respect, than the applicable agreement as in effect on the date of such acquisition, merger or consolidation.
Appears in 2 contracts
Sources: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $1.0 million, unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person 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
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 30.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing 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 shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 50.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that as to the terms fairness to the Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in prior paragraph of this Section 4.13 shall not apply to4.11:
(1) transactions with any employment, severance or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment consulting agreement or other payment compensation agreement, arrangement or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Companyplan, or other paymentsany amendment thereto, awards or grants in cash, Qualified Capital Stock of entered into by the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit any of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made 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) advances payment of reasonable directors’ fees, consulting fees and other benefits to officers, directors, employees and consultants persons who are not otherwise Affiliates of the Company;
(5) provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent permitted by law;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Permitted Investments and Restricted Payments that are permitted by Section 4.07 hereof;
(8) any transaction in which the Company made or its Restricted Subsidiaries, as the case may be, deliver 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 its Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the initial paragraph above;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in an amount not to exceed $1.0 million in any calendar year;
(5) compliance with the payment of reasonable 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 terms of the Company or any Restricted Subsidiary entered into Indenture which are, in the ordinary course of business aggregate (including reasonable taking into account all the costs and benefits thereunder);
(6associated with such transactions) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is materially no less favorable to the Company and the or its Restricted Subsidiaries 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 are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(10) transactions between the Company or any material respectof its Restricted Subsidiaries and any Person, a director of which 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, as the case may be, on any matter involving such other Person.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend or conduct into any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any assets property or the rendering of any service) with with, or for the benefit of of, any of their respective its Affiliates (each, each an “Affiliate Transaction”), unless:
(1i) the terms of such Affiliate Transaction, taken as a whole, is on terms which Transaction are no less favorable than those that could reasonably be expected to the Company or such Restricted Subsidiary, as the case may be, than would be available obtained in a comparable transaction, at the time such transaction was entered into, on an arm’s-length basis with from a Person that is not an unaffiliated third partyAffiliate of the Borrower;
(2ii) if in the event that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments payments, or other consideration having transfers of property or services with a Fair Market Value Value, in excess of $5.0 5 million, the terms of such Affiliate Transaction is in writing and will be approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Borrower (including a majority of the disinterested members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such Affiliate Transaction and determined transaction complies with the preceding provisions; and
(iii) in the event that such Affiliate Transaction complies involves aggregate payments, or transfers of property or services with the foregoing provisions, ora Fair Market Value, in the event that there are no disinterested directorsexcess of $10 million, the Trustee has received Borrower will, prior to the consummation thereof, obtain a written favorable opinion as to the fairness of such Affiliate Transaction to the Borrower and the relevant Restricted Subsidiary (if any) from a financial point of view from an Independent Financial Advisor stating that and file the terms of such Affiliate Transaction are fair, from a financial point of view, to same with the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beAdministrative Agent.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall 5.11(a) above will not apply to:
(1i) transactions Affiliate Transactions with or among the Company Borrower and any Restricted Subsidiary or between or among Restricted Subsidiaries, excluding any Affiliate Transaction with a Restricted Subsidiary in which Vitro or any of its Affiliates directly or indirectly own any Capital Stock (other than by virtue of ownership by the Borrower and its Restricted Subsidiaries or the issuance to Vitro or any of its Affiliates of any nominal shares of the Borrower or its Restricted Subsidiaries as required by applicable law);
(2ii) any Permitted Investment reasonable fees and compensation paid to, and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employeesindemnity provided on behalf of, officers, directors, and employees, consultants who are not otherwise Affiliates or agents of the Company Borrower or any Restricted Subsidiary as determined in good faith by the Borrower’s Board of Directors (including contributions to employee stock option plans maintained by Vitro and made its Subsidiaries);
(iii) Affiliate Transactions undertaken in the ordinary course of businessbusiness pursuant to any contractual obligations or rights in existence on the Original Effective Date (as in effect on the Original Effective Date) or any amendments, extensions or renewals of such contractual obligations on comparable terms;
(4iv) any Restricted Payments made in compliance with Section 5.05;
(v) loans and advances to officers, directors, directors and employees and consultants who are not otherwise Affiliates of the Company Borrower or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business and in an amount not to exceed exceeding $1.0 million in 300,000 outstanding at any calendar yearone time;
(5vi) Affiliate Transactions on an arm’s-length basis with Vitro or any Subsidiary of Vitro (other than the Borrower or any of its Subsidiaries) that consist of (1) the payment purchase or sales of reasonable directors’ fees, indemnification goods and similar arrangements, consulting fees, employee salaries, bonuses services (including accounting services) or employment agreements, compensation the leasing of real estate or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any Restricted Subsidiary entered into equipment in the ordinary course of business consistent with past practice; (including reasonable benefits thereunder)2) payments made to Vitro or its Subsidiaries relating to the use and development of intellectual property; and (3) purchases, leases or sales of assets (other than Collateral or land held by any Subsidiary (i) the Capital Stock of which is pledged or required to be pledged or (ii) the Real Property of which is mortgaged or required to be mortgaged as described under “Security”) up to an aggregate amount of $15 million in any fiscal year;
(6A) issuances and sales of Qualified Capital Stock the assumption of the Company or rights and obligations under a lease agreement relating to an airplane pursuant to which aggregate annual payments of approximately $7 million will be made, (B) the receipt use of the proceeds airplane identified in the prior clause (A), or any replacement airplane, by customers, directors and officers of capital contributions Vitro and its Affiliates, and (C) performance under outsourcing agreement entered into for hangar, maintenance, repair and operating services relating to the airplane identified in respect clause (A), or any replacement airplane, involving aggregate annual payments of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)up to $8 million;
(7viii) a provision (A) loans, advances or purchase other extensions of goods credits (including guarantees) by Vitro or services its Affiliates made to the Borrower or any of its Subsidiaries and any payments made in the ordinary course of business; and
connection therewith, and (8) B) any transactions undertaken pursuant to any contractual obligations in existence hedging agreements or arrangements entered into between Vitro or its Affiliates, on the Issue Date (one hand, and the Borrower or any of its Subsidiaries, on the Closing Date other hand, and entered into any payments made in connection with the Transactions)therewith, as the same may be amended, modified or replaced from time to time in each case so long as such amendment, modification or replacement is the terms thereof are no less favorable to the Company Borrower and the its Restricted Subsidiaries than could have been obtained on an arm’s-length basis;
(ix) any management, administrative, information technology or similar services performed by Vitro or its Affiliates for the benefit of the Borrower or any of its Subsidiaries, and any payments made in connection therewith, so long as the aggregate amount of all payments made pursuant to this clause (ix) in any material respectcalendar year does not exceed 1.75% of the net sales of the Borrower (determined on a consolidated basis) for such year; and
(x) services rendered by Vitro or its Affiliates for the benefit of the Borrower or any of its Subsidiaries, and any payments in connection therewith not in excess of Vitro’s or its Affiliates’ cost of rendering such services, including, without limitation, payments made by the Borrower or any of its Subsidiaries in connection with (A) information technology services, (B) the salaries of Vitro's Chairman of the Board and Chief Executive Officer and (C) Clinica Vitro, El ▇▇▇▇▇▇▇ and Vitro Club.
Appears in 2 contracts
Sources: Loan Agreement (Vitro Sa De Cv), Loan Agreement (Vitro Sa De Cv)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to SECTION 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment, modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect, including, without limitation, transactions with Triumph Receivables, LLC in connection with the Existing Receivables Facility;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, SECTION 5.1;
(8) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(110) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 2 contracts
Sources: Indenture (Triumph Group Inc), Indenture (Triumph Group Inc)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who 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 Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above.
(b) The following items will not be deemed Affiliate Transactions and therefore will not be subject to the provisions of SECTION 4.11(a) hereof:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to SECTION 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions with Affiliates solely in their capacity as holders of Debt or Capital 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; Exhibit 4.1
(5) 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;
(6) the pledge of Capital Interests of any Unrestricted Subsidiary to non-Affiliate lenders to support the Debt of any Unrestricted Subsidiary owed to such lenders;
(7) transactions between or among the Company and/or its Restricted Subsidiaries;
(8) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(9) any contribution of capital to the Company;
(10) transactions permitted by, and complying with, SECTION 5.1;
(11) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(12) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(113) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Moog Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any of their respective Affiliates the Borrower (each, an “"Affiliate Transaction”"), unless:: TABLE OF CONTENTS
(1i) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Borrower or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Borrower or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2ii) if such the Borrower delivers to the Agent:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 50 million, a resolution of the Borrower's Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this Section 5.08 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the such Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(32) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 150 million, an opinion as to the fairness to the Borrower or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:provisions of paragraph (a):
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and employment agreement or director's engagement agreement, employee benefit plan, officer indemnification agreement or similar agreement entered into by the Borrower or any of its Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearof the Borrower or such Restricted Subsidiary;
(5ii) transactions between or among the Borrower and/or its Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors fees and provision to directors’ fees, indemnification officers and employees of customary indemnities and customary benefits pursuant to employee benefit plans 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6v) issuances and sales of Qualified Capital Stock Equity Interests (other than Disqualified Stock) to Affiliates of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Borrower;
(7vi) a provision (A) corporate sharing agreements among the Borrower and its Subsidiaries with respect to tax sharing and general overhead and other administrative matters and (B) any other intercompany arrangements disclosed or purchase of goods or services described in the ordinary course of business; and
Borrower's report on Form 10-K for the fiscal year ended December 31, 2003 (8) any transactions undertaken pursuant to any contractual obligations including the exhibits thereto), all as in existence effect on the Issue Date (date hereof, and any amendment or on replacement of any of the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time foregoing so long as such amendment, modification amendment or replacement agreement is no not less favorable advantageous to the Company and the Restricted Subsidiaries Borrower in any material respect.respect than the agreement so amended or replaced, as such agreement was in effect on the date hereof;
(vii) transactions entered into as part of a Permitted Receivables Financing;
(viii) Restricted Payments that are permitted by the provisions of Section 5.03 hereof; E-56
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Parent and Publishing shall not, not and shall not cause or permit any of their respective Restricted Subsidiary Subsidiaries to (i) sell, lease, transfer, issue or otherwise dispose of any of its properties or assets or securities to, directly or indirectly(ii) purchase any property, conduct any business or enter into, renew, amend or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets or the rendering of securities from, (iii) make any serviceInvestment in, or (iv) enter into or suffer to exist any contract or agreement with or for the benefit of, an Affiliate of Parent, Publishing or any of their respective Affiliates Subsidiaries (each, an “"Affiliate Transaction”"), unless:
(1) other than Affiliate Transactions permitted under the following paragraph, unless the Board of Directors of Parent, pursuant to a Board Resolution, reasonably and in good faith determines that such Affiliate TransactionTransaction is fair to Parent, taken as a whole, is on terms which are no less favorable to the Company Publishing or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction and is on an arm’s-length basis with terms at least as favorable as might reasonably have been obtainable at such time from an unaffiliated third party;
. All Affiliate Transactions (2) if such Affiliate Transaction or and each series of related Affiliate Transactions involves which are similar or part of a common plan) involving aggregate payments or other consideration having property with a Fair Market Value fair market value in excess of $5.0 million, such Affiliate Transaction is in writing and 2,000,000 shall be approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Parent, such Affiliate Transaction and approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such Affiliate Transaction transaction complies with the foregoing provisions. In addition, orneither Publishing, in the event that there are no disinterested directors, the Trustee has received a written opinion from Parent nor any of their respective Restricted Subsidiaries shall enter into an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments involving or other consideration having a Fair Market Value in excess value of more than $15.0 million5 million to Publishing, Parent or any of their respective Restricted Subsidiaries unless Publishing, Parent or such Affiliate Transaction is in writing and the Trustee Restricted Subsidiary has received a written an opinion from an Independent Financial Advisor stating to the effect that the financial terms of such Affiliate Transaction are fairfair to Publishing, from a financial point of view, to the Company Parent or the such Restricted Subsidiary involved in or are at least as favorable as might reasonably have been obtained at such Affiliate Transaction, as the case may betime from an unaffiliated party.
(b) Notwithstanding The provisions of the foregoing, the restrictions set forth in this Section 4.13 foregoing paragraph shall not apply to (i) reasonable and customary fees and compensation paid to:
, and indemnity (1other than for fraud or intentional misrepresentation) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employeesprovided on behalf of, officers, directors, employees or consultants of Publishing, Parent or any of their respective Restricted Subsidiaries, as determined in good faith by the Board of Directors of Parent or the senior management thereof, (ii) transactions exclusively between or among Parent and consultants who any of its Wholly-owned Subsidiaries that are Guarantors as of the Issue Date or exclusively between or among such Wholly-owned Subsidiaries that are Guarantors as of the Issue Date, provided such transactions are not otherwise Affiliates of the Company prohibited by this Indenture, and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5iii) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence described on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectSchedule 4.12 attached hereto.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct make any business 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, renewmake, amend amend, renew or conduct extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $10 million, unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on fair and reasonable terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis transaction by the Company or such Restricted Subsidiary with a Person that is not an unaffiliated third party;Affiliate of the Company or any Restricted Subsidiary; and
(2) if 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 million, a Board Resolution attached to an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event this covenant and that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves has been approved by a majority of the Disinterested Members; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million150 million or 3% of Consolidated Total Assets, an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such Affiliate Transaction or series of related Affiliate Transactions is in writing and fair to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of Company or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:provisions of Section 4.05(a):
(1) transactions with between or among the Company and any Restricted Subsidiary or between or among its Restricted Subsidiaries;
(2) any Restricted Payments that are permitted under Section 4.04 and Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Investments;
(3) any issuance or sale of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations agreements or arrangements in existence effect on the Issue Date (and described in the Offering Memorandum, or on the Closing Date and entered into in connection with the Transactions)any amendment, modification, or supplement thereto or renewal or replacement thereof, as the same may be amended, modified or replaced from time to time so long as such amendmentagreement or arrangement, modification as so amended, modified, supplemented, renewed or replacement replaced, taken as a whole, is no less favorable not materially more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date as determined by the Disinterested Members of the Board of Directors of the Company evidenced by a Board Resolution;
(5) payments by the Company (and any direct or indirect parent thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent) and its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries; provided that in each case the amount of such payments in any material respectfiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(6) payment of reasonable and customary fees to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Company or any Subsidiary thereof; and
(7) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any Restricted Subsidiary with officers and employees of the Company or any Subsidiary thereof and the payment of compensation to officers and employees of the Company or any Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment have been approved by a majority of the Disinterested Members.
Appears in 1 contract
Sources: Indenture (Zayo Group LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Issuer, taken as a whole, is on terms which are no less favorable to or the Company relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis Subsidiary with an unaffiliated third party;; and
(2ii) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, the Issuer delivers to the Trustee a Board Resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction is and set forth in writing an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and a majority shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) the disinterested payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company shall have approved Issuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary;
(4) transactions between or among the Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) any agreement between any Person and an Affiliate Transaction and determined of such Person existing at the time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such Affiliate Transaction complies with agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the foregoing provisions, or, Holders in the event that there are no disinterested directors, good faith judgment of the board of directors of the Issuer when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);
(8) transactions in which the Issuer delivers to the Trustee has received a written opinion from an Independent Financial Advisor stating a nationally recognized investment banking, accounting or appraisal firm to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(29) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(310) the existence of, or the performance by the Issuer or any issuance of Qualified Capital Stock its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement) to which it is a party as of the CompanyIssue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or other paymentsthe performance by the Issuer or any of its Restricted Subsidiaries of obligations under, awards any future amendment to any such existing agreement or grants in cash, Qualified Capital Stock any similar agreement entered into after the Issue Date shall only be permitted by this clause (10) to the extent that the terms of the Company any such amendment or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who new agreement are not otherwise Affiliates of disadvantageous in any material respect to the Company and made Holders when taken as a whole as compared to the original agreement in effect on the ordinary course of businessIssue Date;
(411) advances to officerstransactions with Burger King Corporation and Popeyes Louisiana Kitchen, directors, employees and consultants who are not otherwise Affiliates of the Company made Inc. in the ordinary course of business and otherwise in compliance with the terms of this Indenture which, in the good faith determination of the Issuer, are fair to the Issuer and its Restricted Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such time from an amount not to exceed $1.0 million in any calendar year;unaffiliated party; and
(512) the payment of reasonable directors’ fees, indemnification all fees 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant expenses related to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $15.0 million, unless:
(1i) such Affiliate Transaction is on terms that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Issuer or a Restricted Subsidiary who are outside directors;
(3) any reasonable or customary employment agreement, consulting agreement, severance agreement, employee benefit plan, compensation arrangement, officer or director indemnification agreement or any similar arrangement entered into by, or policy of, the Issuer or any of its Restricted Subsidiaries and payments pursuant thereto;
(4) transactions between or among the Issuer and/or its Restricted Subsidiaries;
(5) the sale or issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer;
(6) any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous in any material respect (as determined in good faith by the senior management or the Board of Directors of the Issuer or any direct or indirect parent of the Issuer) to the holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(7) transactions approved by the majority of Disinterested Directors in which the Issuer delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view, to the Issuer or any relevant Restricted Subsidiaries;
(8) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders or investors rights 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 that it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer 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 (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes in any material respect as determined in good faith by the Board of Directors of the Issuer;
(9) [reserved];
(10) any contribution of capital to the Issuer and transactions with an Affiliate where the only consideration paid is Capital Interests of the Issuer;
(11) transactions permitted by, and complying with, Section 5.1;
(12) transactions with any joint venture;
(13) transactions with Affiliates solely in their capacity as holders of Debt or Capital Interests of the Issuer 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;
(14) the entering into of any tax sharing, allocation or similar agreement and any payments by the Issuer or any of the Restricted Subsidiaries pursuant to any tax sharing, allocation or similar agreement;
(15) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms which that are no less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, as determined in good faith by the Issuer, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Issuer, and pledges of the Capital Interests of Unrestricted Subsidiaries;
(216) if transactions effected as part of a Qualified Receivables Transaction;
(17) any agreement between any Person and an Affiliate of such Affiliate Transaction Person existing at the time such Person is acquired by or series merged or consolidated with or into the Issuer 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 contemplation of related Affiliate Transactions involves aggregate payments such acquisition, merger or other consideration having consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a Fair Market Value in excess of $5.0 millionwhole, such Affiliate Transaction is in writing and a majority not more disadvantageous to the holders of the disinterested members Notes in any material respect, than the applicable agreement as in effect on the date of such acquisition, merger or consolidation;
(18) transactions between the Issuer and/or any of its Restricted Subsidiaries and any Person or director of which is also a director of the Board of Directors Issuer or any direct or indirect parent of the Company shall have approved Issuer so long as such Affiliate Transaction and determined that director abstains from voting as a director of the Issuer as such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company direct or the Restricted Subsidiary involved in such Affiliate Transactionindirect parent, as the case may be, on any matter involving such other Person; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(119) transactions with or among the Company and any Restricted a Person (other than an Unrestricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the CompanyIssuer) that is an Affiliate of the Issuer solely because the Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in, or other paymentscontrols, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectPerson.
Appears in 1 contract
Sources: Indenture (BlueLinx Holdings Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business payment to, or enter intosell, renewlease, amend transfer or conduct otherwise dispose of any of its properties or assets to, or purchase any property or assets from in any transaction or series of related transactions (including the purchasetransactions, saleor enter into or make or amend, lease any contract, agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with an unaffiliated third party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Company delivers to the Trustee a resolution adopted by the Board of Directors of the Company approving such Affiliate Transaction and an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and shall not apply to:
(i) Permitted Investments and/or other Restricted Payments that are permitted by Section 4.7;
(ii) [reserved];
(iii) any employment or consulting agreement, director’s engagement agreement, employee benefit plan, officer or director indemnification agreement, severance arrangement, compensation or any similar arrangement entered into by the Company (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries in the ordinary course of business or approved in good faith by the relevant Board of Directors and payments pursuant thereto;
(iv) the payment of reasonable fees, reasonable out of pocket costs, compensation and other benefits (including retirement, health, stock, option, deferred compensation and other benefit plans), reimbursements and indemnities paid to, or provided on behalf of, or for the benefit of, former, current or future directors, officers, employees, managers and consultants of any direct or indirect parent of the Company, the Company or any of its Restricted Subsidiaries to the extent attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(v) payments to any future, current or former employee, director, officer or consultant of Company (any direct or indirect parent thereof) or any of its Subsidiaries pursuant to a management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any health, disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers or consultants that are, in each case, approved by the Company in good faith;
(vi) transactions between or among the Company and one or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction) or between or among one or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction);
(vii) any transaction with a Person which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns, directly or indirectly, Equity Interests of or otherwise controls such Person
(viii) the issuance or sale of Capital Stock or other Equity Interests of any direct or indirect parent of the Company to the management of the Company, any of its Restricted Subsidiaries (or any direct or indirect parent thereof), or any of their respective subsidiaries pursuant to employee and severance arrangements in the ordinary course of business, or to any director, officer, employee or consultant (or their respective estates, investment funds, investment vehicles, spouses or former spouses) of the Company, any of the Company’s subsidiaries or any direct or indirect parent of the Company and the granting and performing of reasonable and customary registration rights;
(ix) any agreement, instrument or arrangement as in effect on the Issue Date (including agreement, instrument or arrangement underlying affiliate transactions described in the Offering Memorandum), and any transactions contemplated thereby and amendments or modifications thereto or replacements thereof, so long as any such amendment, modification or replacement is not disadvantageous in any material respect to the Holders, taken as a whole, as compared to the original agreement, instrument or arrangement in effect on the Issue Date;
(x) transactions as to which the Company or any Restricted Subsidiary delivers to the Trustee a written opinion of an investment banking, accounting, consulting or appraisal firm of national standing in the United States to the effect that the transaction complies with clause (i) above or is fair, from a financial point of view or otherwise, to the Company or the Restricted Subsidiary that is a party thereto, as the case may be;
(xi) any contribution of capital to the Company or any Restricted Subsidiary otherwise permitted hereunder;
(xii) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary course of business or consistent in all material respects with past practice and which are (x) in the good faith determination of the Company (including by senior management or the board thereof), fair to the Company and its Restricted Subsidiaries or (y) on terms that are not less favorable, taken as a whole, to the Company or such Restricted Subsidiary, than those that might reasonably have been obtained in a comparable arm’s-length transaction with an unaffiliated third party;
(xiii) sales or other dispositions of accounts receivable and related assets and interests therein of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Subsidiary in a Qualified Receivables Transaction and Permitted Investments and other transactions in connection with a Qualified Receivables Transaction and any other Standard Securitization Undertakings in connection with a Qualified Receivables Transaction;
(xiv) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Company and one or more Restricted Subsidiaries, on the one hand, and any other Person (including any direct or indirect parent of the Company) with which are no less favorable the Company and/or such Restricted Subsidiaries files a consolidated tax return; provided that any such tax sharing agreement, or payment pursuant thereto, shall be on customary terms to the extent attributable to the ownership or operation of the Company and the relevant Restricted Subsidiaries;
(xv) any merger, amalgamation, arrangement, consolidation or other reorganization of the Company with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating the Company in a new jurisdiction;
(xvi) transactions between the Company or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Company or any of its Restricted Subsidiaries; provided that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as the case may be, on any matter involving such other Person;
(xvii) any issuance or sale of Capital Stock (other than would be available Disqualified Stock) to Affiliates of the Company and any agreement that grants registration and other customary rights in a comparable connection therewith or otherwise to the direct or indirect securityholders of the Company (and the performance of such agreements);
(xviii) (A) investments by Affiliates (other than any direct or indirect parent of the Company or any such parent’s subsidiaries) in securities of the Company or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred in connection therewith) so long as (x) the investment is being offered generally to investors on the same or more favorable terms and (y) the investment constitutes less than 10.0% of the proposed issue amount of such class of securities, and (B) transactions with Affiliates solely in their capacity as holders of Debt or Equity Interests of the Company or any of the Restricted Subsidiaries, so long as such transaction on an arm’sis with all holders of such class (and there are such non-length basis with an unaffiliated third partyAffiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally;
(2xix) if any agreement between any Person and an Affiliate of such Affiliate Transaction Person existing at the time such Person is acquired by, merged into or series amalgamated, arranged or consolidated with the Company or any of related Affiliate Transactions involves aggregate payments its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or other consideration having a Fair Market Value consolidation and any amendment thereto (so long as any such amendment is not materially more disadvantageous to the Company or such Restricted Subsidiary in excess the good faith judgment of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of Senior Management or the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with Company, when taken as a whole, as compared to the foregoing provisions, or, applicable agreement as in effect on the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms date of such Affiliate Transaction are fairacquisition, from a financial point of viewmerger, to amalgamation, arrangement or consolidation);
(xx) any lease entered into between the Company or the any Restricted Subsidiary involved in such Affiliate TransactionSubsidiary, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionlessee, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock Affiliate of the Company, or other paymentsas lessor, awards or grants in cash, Qualified Capital Stock the ordinary course of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directorsbusiness, and consultants who are not otherwise Affiliates any lease, sublease, license or sublicense of the Company and made intellectual property in the ordinary course of business;
(4xxi) advances pledges of Equity Interests of Unrestricted Subsidiaries to officers, directors, employees and consultants who are not otherwise Affiliates support the Debt of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;such Unrestricted Subsidiary; and
(5xxii) the payment of reasonable directors’ fees, indemnification payments to and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements from and incentive arrangements transactions with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services joint venture in the ordinary course of business; and
provided that such joint venture is not controlled by an Affiliate (8) any transactions undertaken pursuant to any contractual obligations in existence on other than a Restricted Subsidiary) of the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectCompany.
Appears in 1 contract
Sources: Indenture (Target Hospitality Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any of their respective Affiliates the Borrower (each, an “Affiliate Transaction”)) involving, with respect to any such transaction or series of related transactions, payments or consideration in excess of $1 million, unless:
(1i) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are either (a) no less favorable to the Company Borrower or the relevant Restricted Subsidiary than those that could have been obtained in a comparable arm’s-length transaction by the Borrower or such Restricted SubsidiarySubsidiary with a Person that is not an Affiliate of the Borrower or (b) if, as in the case may begood faith judgment of the Borrower’s Board of Directors, than would be available in a no comparable transaction on an arm’s-length basis is available with an unaffiliated third party;which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Borrower or the relevant Restricted Subsidiary from a financial point of view; and
(2ii) if the Borrower delivers to the Administrative Agent:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25 million, a resolution of the Board of Directors of the Borrower accompanied by an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, complies with this Section 6.05 and that such Affiliate Transaction is in writing and or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Borrower; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50 million, an opinion issued to the Board of Directors of the Borrower by an accounting, appraisal or investment banking firm of international standing or generally recognized in the shipping or offshore drilling industries as qualified to perform the tasks for which such firm has been engaged as to the fairness to the Borrower or such Restricted Subsidiary of such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received from a written opinion from an Independent Financial Advisor stating financial point of view or that the terms of such Affiliate Transaction are fair, from a financial point of view, no less favorable to the Company Borrower or the relevant Restricted Subsidiary involved than those that could have been obtained in a comparable arm’s-length transaction by the Borrower or such Restricted Subsidiary with a Person that is not an Affiliate Transactionof the Borrower. For the avoidance of doubt, as the case may be; and
(3) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million25 million or less, the determination that such Affiliate Transaction is in writing and or series of Affiliate Transactions complies with this Section 6.05 may be made by a Financial Officer of the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beBorrower.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions, as applicable, and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to:6.05(a):
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and employment agreement, employee benefit plan, compensation plan or arrangement, officer or director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearpayments pursuant thereto;
(5ii) the payment of reasonable 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 fees to directors of the Company Borrower or any Restricted Subsidiary;
(iii) transactions solely between or among the Borrower and/or any of its Restricted Subsidiaries;
(iv) the issuance or sale of Equity Interests (other than Disqualified Stock) of the Borrower to, or receipt of capital contributions from, Affiliates of the Borrower;
(v) loans or advances to employees of the Borrower or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)not to exceed $2 million in the aggregate at any one time outstanding;
(6vi) issuances and sales of Qualified Capital Stock transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company Borrower solely because the Borrower owns, directly or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(7vii) Permitted Investments (other than Investments permitted by clause (3) of the definition thereof) and Restricted Payments that do not violate the provisions of Section 6.01;
(viii) transactions between the Borrower 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 provision director of the Borrower or purchase such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of goods the Borrower or services in the ordinary course of businesssuch Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(8) ix) any transactions undertaken pursuant to any contractual obligations agreement as in existence on the Issue Date (or effect on the Closing Date and entered into in connection with the Transactions)or any amendments, as the same may be amended, modified renewals or replaced from time to time extensions of any such agreement (so long as such amendmentamendments, modification renewals or replacement is no extensions are not less favorable to the Company and the Restricted Subsidiaries in any material respectLenders).
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Tembec Inc. shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business payment to, or enter intosell, renewlease, amend transfer or conduct otherwise dispose of any of its properties or assets to, or purchase any property or assets from in any transaction or series of related transactions (including the purchasetransactions, saleor enter into or make or amend, lease any contract, agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of US$5.0 million, unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to Tembec Inc. or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm's-length transaction by Tembec Inc. or such Restricted Subsidiary with an unaffiliated third party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$15.0 million, the Company delivers to the Trustee a resolution adopted by the Board of Directors of the Company approving such Affiliate Transaction and an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 and Permitted Investments;
(2) any employment or consulting agreement, director's engagement agreement, employee benefit plan, officer or director indemnification agreement, severance arrangement, compensation or any similar arrangement entered into by Tembec Inc. or any of its Restricted Subsidiaries in the ordinary course of business or approved in good faith by the relevant Board of Directors and payments pursuant thereto;
(3) the payment of reasonable fees, compensation and other benefits (including retirement, health, stock, option, deferred compensation and other benefit plans) and indemnities to directors, officers and employees of Tembec Inc. and its Restricted Subsidiaries;
(4) transactions between or among Tembec Inc. and one or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction) or between or among one or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction);
(5) any transaction with a Person which would constitute an Affiliate Transaction solely because Tembec Inc. or a Restricted Subsidiary owns, directly or indirectly, Equity Interests of or otherwise controls such Person;
(6) the issuance or sale of Equity Interests (other than Disqualified Stock) of Tembec Inc. (including to officers, directors and employees pursuant to stock option, stock ownership or other equity-based incentive plans);
(7) any agreement, instrument or arrangement as in effect on the Issue Date and any transactions contemplated thereby and amendment or modification thereto or replacement thereof, so long as such amendment, modification or replacement is not materially less favorable, taken as a whole, to Tembec Inc. and its Restricted Subsidiaries than the original agreement, instrument or arrangement as in effect on the Issue Date;
(8) transactions as to which the Company delivers to the Trustee a written opinion of an investment banking, accounting, consulting or appraisal firm of national standing in Canada or the United States to the effect that the transaction complies with clause (i) of this Section 4.11 or is fair, from a financial point of view or otherwise, to Tembec Inc. or the Restricted Subsidiary that is a party thereto, as the case may be;
(9) any contribution of capital to the Company or Tembec Inc.;
(10) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary course of business or consistent with past practice; provided that in the good faith determination of the Company such transaction is on terms that are not less favorable, taken as a whole, to Tembec Inc. or such Restricted Subsidiary, than those that might reasonably have been obtained in a comparable arm's-length transaction with an unaffiliated third party;
(11) sales or other dispositions of accounts receivable and related assets and interests therein of the type specified in the definition of “Receivables Transaction” to a Receivables Subsidiary in a Receivables Transaction and Permitted Investments and other transactions in connection with a Receivables Transaction and any other Standard Securitization Undertakings in connection with a Receivables Transaction;
(12) the entering into of a tax sharing agreement, or payments pursuant thereto, between Tembec Inc. and one or more Subsidiaries, on the one hand, and any other Person with which are no less favorable Tembec Inc. and/or such Subsidiaries files a consolidated tax return; provided that (i) payments in respect of any taxable year by Tembec Inc. and its Subsidiaries shall, in the aggregate, not exceed the amount of such consolidated taxes that Tembec Inc. and/or its applicable Subsidiaries would have paid had they paid such taxes on a stand-alone basis and (ii) payments in respect of tax on the income or activities of an Unrestricted Subsidiary shall be permitted only to the extent that such Unrestricted Subsidiary makes payments for such purpose to Tembec Inc. or its Restricted Subsidiaries;
(13) any merger, amalgamation, arrangement, consolidation or other reorganization of Tembec Inc. or the Company with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating Tembec Inc. or the Company, as applicable, in a new jurisdiction;
(14) transactions between Tembec Inc. or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of Tembec Inc. or any of its Restricted Subsidiaries; provided that such director abstains from voting as a director of Tembec Inc. or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third partyany matter involving such other Person;
(215) if such Affiliate Transaction any issuance or series sale of related Affiliate Transactions involves aggregate payments or Capital Stock (other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority than Disqualified Stock) to Affiliates of the disinterested members Company and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Company (and the performance of such agreements); and
(16) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated, arranged or consolidated with Tembec Inc. or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation and any amendment thereto (so long as any such amendment is not materially more disadvantageous to Tembec Inc. or such Restricted Subsidiary in the good faith judgment of Senior Management or the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with Company, when taken as a whole, as compared to the foregoing provisions, or, applicable agreement as in effect on the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms date of such Affiliate Transaction are fairacquisition, from a financial point of viewmerger, to the Company amalgamation, arrangement or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beconsolidation).
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: Indenture (Tembec Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of the Parent and any of their respective Affiliates Restricted Subsidiary (each, an “Affiliate Transaction”)) involving, with respect to any such transaction or series of related transactions, payments or consideration in excess of $1.0 million, unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are either (a) no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that could have been obtained in a comparable arm’s-length transaction by the Parent or such Restricted SubsidiarySubsidiary with a Person that is not an Affiliate of the Parent and any Restricted Subsidiary or (b) if in the good faith judgment of the Parent’s Board of Directors, as the case may be, than would be available in a no comparable transaction on an arm’s-length basis is available with an unaffiliated third party;which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary from a financial point of view; and
(2) if the Parent 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, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, complies with this Section 4.11 and that such Affiliate Transaction is in writing and or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Parent; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an opinion issued to the Board of Directors of the Parent by an accounting, appraisal or investment banking firm of international standing or generally recognized in the shipping or offshore drilling industries as qualified to perform the tasks for which such firm has been engaged as to the fairness to the Parent or such Restricted Subsidiary of such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received from a written opinion from an Independent Financial Advisor stating financial point of view or that the terms of such Affiliate Transaction are fair, from a financial point of view, no less favorable to the Company Parent or the relevant Restricted Subsidiary involved than those that could have been obtained in a comparable arm’s-length transaction by the Parent or such Restricted Subsidiary with a Person that is not an Affiliate Transactionof the Parent and any Restricted Subsidiary. For the avoidance of doubt, as the case may be; and
(3) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million25.0 million or less, the determination that such Affiliate Transaction is in writing and or series of Affiliate Transactions complies with this covenant may be made by a Financial Officer of the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beParent.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions, as applicable, and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to:4.11(a):
(1) transactions with any employment agreement, employee benefit plan, compensation plan or among arrangement, officer or director indemnification agreement or any similar arrangement entered into by the Company and Parent or any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made its Subsidiaries in the ordinary course of business and in an amount not payments pursuant thereto;
(2) payment of reasonable directors’ fees to exceed $1.0 million in directors of the Parent or any calendar yearRestricted Subsidiary;
(3) transactions solely between or among the Parent and/or any of its Restricted Subsidiaries;
(4) the issuance or sale of Equity Interests (other than Disqualified Stock) of the Parent to, or receipt of capital contributions from, Affiliates of the Parent;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses loans or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee advances to employees of the Company Parent or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)not to exceed $7.5 million in the aggregate at any one time outstanding;
(6) issuances and sales of Qualified Capital Stock transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company Parent solely because the Parent owns, directly or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(7) Permitted Investments and Restricted Payments that do not violate the provisions of Section 4.07;
(8) transactions between the Parent 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 provision director of the Parent or purchase such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of goods the Parent or services in the ordinary course of businesssuch Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(8) 9) any transactions undertaken pursuant to any contractual obligations agreement as in existence effect on the Issue Date or any amendments, renewals or extensions of any such agreement (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendmentamendments, modification renewals or replacement is no extensions are not less favorable to the Company and the Restricted Subsidiaries in any material respectHolders).
Appears in 1 contract
Sources: Indenture (Pacific Drilling S.A.)
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 make any payment to, or indirectlysell, conduct lease, assign, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 25.0 million, such Affiliate Transaction is in writing and a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value have determined in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating good faith that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions criteria set forth in this Section 4.13 shall the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a Board Resolution. The following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) transactions any transaction with or among the Company and any Company, a Restricted Subsidiary or between joint venture or among similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted SubsidiariesSubsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(2) any Restricted Payments and Permitted Investment and any Restricted Payment or other payment or Investment Investments permitted to be made pursuant to Section 4.09by this Indenture;
(3) the payment to the Sponsor and any issuance of Qualified Capital Stock its officers or Affiliates by the Company or any of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination or indemnification payments and related expenses pursuant to the Management Agreement as in effect on the Issue Date or any amendment thereto (so long as any such amendment (x) does not increase the amount of fees payable to the Sponsor and (y) is not less advantageous to the Holders of the Notes in any material respect than the Management Agreement);
(4) payments in respect of employment, severance and any other compensation arrangements with, and fees and expenses paid to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or other paymentsindirect parent companies, awards or grants in cashany Restricted Subsidiary, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(45) advances payments made by the Company or any Restricted Subsidiary to officersthe Sponsor for any financial advisory, directorsfinancing, employees and consultants who underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are not otherwise Affiliates approved by majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction) in good faith;
(6) transactions in which the Company or any Restricted Subsidiary 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 meets the requirements of clause (1) of the first paragraph of this Section 4.11;
(7) payments or loans (or cancellations of loans) to employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiary which are approved by the Board of Directors of the Company in good faith and which are otherwise permitted under this Indenture;
(8) payments made or performance under any agreement as in effect on the Issue Date (other than the Management Agreement (which are permitted under clause (3) of the second paragraph of this Section 4.11)) that are disclosed in the Offering Circular, including with additional parties that may be added subsequent to the Issue Date and any amendment thereto to the extent such an amendment is not adverse to the interests of the Holders of the Notes in any material respect;
(9) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services (including Parent and its Subsidiaries), in each case in the ordinary course of business and otherwise in an amount not compliance with the terms of this Indenture that are fair to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 its Restricted Subsidiary entered into Subsidiaries, in the ordinary course reasonable determination of business (including reasonable benefits thereunder);
(6) issuances and sales the members of Qualified Capital Stock the Board of Directors of the Company or the receipt senior management thereof, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(10) if otherwise permitted hereunder, the issuance of Equity Interests (other than Disqualified Stock) of the proceeds Company to any Permitted Holder, any director, officer, employee or consultant of capital contributions in respect the Company or its Subsidiaries or any other Affiliates of Qualified Capital Stock the Company (including from the proceeds of any Future ABRY Subordinated Indebtednessother than a Subsidiary);
(711) any transaction permitted by Section 5.1;
(12) any transaction with a provision Receivables Subsidiary effected as part of a Receivables Facility;
(13) the Transactions and the payment of the Transaction Expenses;
(14) payments by the Company and its Restricted Subsidiaries to each other pursuant to tax sharing agreements or purchase of goods or services in the ordinary course of businessarrangements among Parent and its subsidiaries on customary terms (including, without limitation, transfer pricing initiatives); and
(8) any 15) transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date among Foreign Subsidiaries for tax planning and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respecttax efficiency purposes.
Appears in 1 contract
Sources: Indenture (VWR Funding, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall American Commercial Lines will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries (including the Company) to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any American Commercial Lines (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) unless:
(i) such Affiliate Transaction is on terms that are not materially less favorable to American Commercial Lines or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by American Commercial Lines or such Restricted Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, unlessAmerican Commercial Lines delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of American Commercial Lines approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, American Commercial Lines must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to American Commercial Lines or such Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 of this Indenture and Permitted Investments;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of American Commercial Lines or a Restricted Subsidiary;
(3) any employment agreement, arrangement or plan or similar arrangement entered into by the Company or a Restricted Subsidiary in the ordinary course of business, including the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of American Commercial Lines or any Restricted Subsidiary;
(4) transactions between or among American Commercial Lines and/or its Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of American Commercial Lines otherwise permitted hereunder;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such Affiliate Transactionamendment or modification is not more disadvantageous to the holders of the Notes in any material respect;
(7) transactions in which American Commercial Lines delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, taken as from a wholefinancial point of view, is to American Commercial Lines and any relevant Restricted Subsidiaries;
(8) any contribution of capital to the Company;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms which that are no not materially less favorable to the Company American Commercial Lines or such Restricted Subsidiary, as the case may be, as determined in good faith by American Commercial Lines, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of American Commercial Lines;
(210) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing Permitted Sale and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beLeaseback Transactions; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(111) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respecta Permitted JV Transaction.
Appears in 1 contract
Sources: Indenture (Jeffboat LLC)
Limitation on Transactions with Affiliates. (aA) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $2.0 million, unless:
(1a) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis Subsidiary with an unaffiliated third party;; and
(2b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, such Affiliate Transaction is the Issuer delivers to the Trustee a resolution adopted in writing and a good faith by the majority of the disinterested members of the Board of Directors of the Company shall have approved Issuer approving such Affiliate Transaction and determined set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with the foregoing provisions, or, clause (a) above; and
(c) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in the event that there are no disinterested directorsexcess of $25.0 million, the Issuer must obtain and deliver to the Trustee has received a written opinion from of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor Advisor”) stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company Issuer and its Restricted Subsidiaries or are not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(B) The foregoing limitation does not limit, and shall not apply to:
(a) Restricted Payments that are permitted by Section 4.07 of this Indenture and Permitted Investments;
(b) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Parent, the Issuer or a Restricted Subsidiary involved Subsidiary;
(c) payments of loans or cancellation of loans (and any related agreement, plan or arrangement) relating to compensation, fees and other benefits (including retirement, health, option, deferred compensation, employment, stock option, bonus and other benefit plans) and indemnities to officers, employees and consultants of, the Issuer, any direct or indirect parent company of the Issuer, including Parent, or any Restricted Subsidiary, in each case, in the ordinary course of business and approved by the Issuer in good faith;
(d) transactions between or among the Issuer and/or its Restricted Subsidiaries;
(e) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted under this Indenture and the granting of registration and other customary rights in connection therewith;
(f) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto (so long as such Affiliate Transactionamendment, extension or modification is not materially more disadvantageous to the holders of the Notes when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);
(g) any transaction in which the Issuer or a Restricted Subsidiary, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and delivers to the Trustee has received a written opinion from an Independent Financial Advisor stating to the effect that the terms of such Affiliate Transaction transaction are fair, from a financial point of view, to the Company Issuer or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any relevant Restricted Subsidiary or between are not materially less favorable to the Issuer or among the relevant Restricted SubsidiariesSubsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer or such Restricted Subsidiary with a Person that is not an Affiliate of the Issuer;
(2h) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(3i) arm’s-length transactions between the Issuer and/or its Restricted Subsidiaries and any issuance of Qualified Capital Stock direct or indirect parent company of the CompanyIssuer, including Parent, with respect to Station Contracts or other paymentsthe licensing of intellectual property, awards or grants in casheach case, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4j) advances to officers, directors, employees and consultants who are not otherwise Affiliates of Investments in or transactions with a joint venture that is an Affiliate solely because the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses Issuer or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any a Restricted Subsidiary owns an equity interest in or otherwise controls such Person entered into in the ordinary course of business (including reasonable benefits thereunder)and permitted by Section 4.07 of this Indenture;
(6k) issuances and sales pledges of Qualified Capital Stock Interests of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Unrestricted Subsidiaries;
(7l) transactions with a provision Person (other than an Unrestricted Subsidiary of the Issuer) that is an Affiliate of the Issuer solely because the Issuer owns, directly or purchase through a Restricted Subsidiary, a Capital Interest in, or controls, such Person;
(m) any transaction permitted by Article 5 of this Indenture; and
(n) transactions with customers, clients, suppliers or purchasers or sellers of goods or services services, in each case, in the ordinary course of business; and
(8) any transactions undertaken pursuant business and which, in the good faith judgment of the Issuer, are fair to any contractual obligations in existence on the Issue Date (Issuer or on the Closing Date and entered into in connection with the Transactions)such Restricted Subsidiary, as the same case may be amendedbe, modified or replaced from are on terms at least as favorable as those that would have been obtained at such time to time so long as such amendment, modification or replacement in a comparable arm’s length transaction with a Person that is no less favorable to not an Affiliate of the Company and the Restricted Subsidiaries in any material respectIssuer.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Issuer, taken as a whole, is on terms which are no less favorable or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Issuer delivers to the Company Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Issuer must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Issuer or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing reasonable and a majority of the disinterested customary fees and indemnities to members of the Board of Directors of the Company shall have approved Issuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary;
(4) transactions between or among the Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) any agreement between any Person and an Affiliate Transaction and determined of such Person existing at the time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such Affiliate Transaction complies with agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the foregoing provisions, or, Holders in the event that there are no disinterested directors, good faith judgment of the board of directors of the Issuer when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);
(8) transactions in which the Issuer delivers to the Trustee has received a written opinion from an Independent Financial Advisor stating to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(29) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(310) any issuance of Qualified Capital Stock of the Companypayments to Carrols Restaurant Group, Inc. or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, its affiliates pursuant to employment arrangements or stock option plans for the benefit Management Services Agreement of employees(i) management, officersconsulting, directorsmonitoring, administration and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount advisory fees not to exceed $12.0 million per annum; provided that such amount shall increase by $1.0 million in any calendar yearper annum on the first anniversary of the Issue Date and each subsequent anniversary of the Issue Date thereafter, and (ii) reasonable and documented out-of-pocket expenses payable pursuant to the Management Services Agreement; provided that payments under this clause (10) shall not be permitted for services rendered after consummation of the Spin-Off;
(511) any provision of services to Carrols Restaurant Group, Inc. or its affiliates pursuant to the Transition Services Agreement in exchange for (i) the payment of management, consulting, monitoring, administration and advisory fees and (ii) the reimbursement of reasonable 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 documented out-of-pocket expenses payable pursuant to the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Transition Services Agreement;
(612) issuances the separation and sales of Qualified Capital Stock of distribution agreement, tax matters agreement and employee matters agreement, and any ancillary agreements contemplated therewith, consistent in all material respects with the Company description thereof in this offering memorandum, together with any changes, additions, modifications or amendments thereto as are not, taken as a whole, materially more disadvantageous to the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Issuer or Holders;
(713) 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) to which it is a provision party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or purchase the performance by the Issuer or any of goods its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or services any similar agreement entered into after the Issue Date shall only be permitted by this clause (13) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous in any material respect to the ordinary course of businessHolders when taken as a whole as compared to the original agreement in effect on the Issue Date; and
(8) any transactions undertaken pursuant 14) the payment of all fees and expenses related to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any of their respective Affiliates the Borrower (each, each an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, relevant Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Borrower or such Subsidiary with an unaffiliated third party;unrelated Person; and
(2ii) if such the Borrower delivers to the Agents:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million500,000, a resolution of the Borrower’s Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with clause (i) of this Section 7.13(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3B) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 1.0 million, an opinion as to the fairness to the Borrower or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to:7.13(a):
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment employment agreement, employee benefit plan, officer and director indemnification agreement or any Restricted Payment similar arrangement entered into by the Borrower or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made its Subsidiaries in the ordinary course of business;
(4ii) advances transactions between or among the Borrower and/or its Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Subsidiary, an Equity Interest in such Person;
(iv) payment of reasonable directors’ fees to officers, directors, employees and consultants Persons who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearBorrower;
(5v) the payment any issuance of reasonable 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 Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary entered into in Borrower to Affiliates of the ordinary course of business (including reasonable benefits thereunder)Borrower;
(6vi) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock Restricted Payments (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7other than Permitted Investments) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectthat do not violate Section 7.4.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Parent Guarantor shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renewmake, amend amend, renew or conduct extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Parent Guarantor or such Restricted Subsidiary, as the case may be, Subsidiary than would be available those that might reasonably have been obtained in a comparable transaction on an arm’s-length basis transaction by the Parent Guarantor or such Restricted Subsidiary with an unaffiliated third partyunrelated Person;
(2ii) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and either (x) the board of directors of the Parent Guarantor (including a majority of the disinterested members of the Board board of Directors of the Company shall have approved directors) approves such Affiliate Transaction and determined and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (i) of this paragraph as evidenced by a resolution of the foregoing provisions, or, in board of directors promptly delivered to the event that Trustee or (y) if there are no disinterested members of the board of directors, the Trustee has received a written Parent Guarantor complies with the fairness opinion from an Independent Financial Advisor stating that the terms requirement of such Affiliate Transaction are fair, from a financial point of view, this Section 4.13(a)(iii) with respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3iii) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Parent Guarantor delivers to the Trustee has received a written an opinion from an Independent Financial Advisor stating that as to the terms fairness to the Parent Guarantor or such Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in provisions of this Section 4.13 shall not apply to:4.13(a):
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and employment agreement, employee benefit plan or stock option plan entered into by the Parent Guarantor or any of its Restricted Payment Subsidiaries or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any the issuance of Qualified Capital Stock of the Company, securities or other payments, awards or grants in cash, Qualified Capital Stock of the Company securities or otherwise, otherwise pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made thereto in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearthat has been approved by a majority of the disinterested members of the board of directors of the Parent Guarantor;
(5ii) transactions between or among the payment Parent Guarantor and its Wholly Owned Restricted Subsidiaries;
(iii) Restricted Payments that are permitted by the provisions of Section 4.08 hereof;
(iv) reasonable and 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 payments thereunder by the Company Parent Guarantor or any of its Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Subsidiaries;
(6v) issuances and sales of Qualified Capital Stock loans or advances to employees of the Company Parent Guarantor or the receipt any of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services its Restricted Subsidiaries in the ordinary course of business, provided that the aggregate amount of all such loans and advances at any time outstanding shall not exceed $1.0 million;
(vi) any agreement as in effect as of the date of this Indenture or any amendment thereto (so long as any such amendment, taken as a whole, is not disadvantageous to the Holders of the Notes in any material respect) or any transaction contemplated thereby; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on vii) the Issue Date issuance of Capital Stock or other Equity Interests of the Parent Guarantor (other than Disqualified Stock) or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable making of other capital contributions to the Company and the Restricted Subsidiaries in any material respectParent Guarantor.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Issuer, taken as a whole, is on terms which are no less favorable or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Issuer delivers to the Company Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Issuer must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Issuer or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing reasonable and a majority of the disinterested customary fees and indemnities to members of the Board of Directors of the Company shall have approved Issuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary;
(4) transactions between or among the Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) any agreement between any Person and an Affiliate Transaction and determined of such Person existing at the time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such Affiliate Transaction complies with agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the foregoing provisions, or, Holders in the event that there are no disinterested directors, good faith judgment of the board of directors of the Issuer when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);
(8) transactions in which the Issuer delivers to the Trustee has received a written opinion from an Independent Financial Advisor stating to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(29) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(310) the existence of, or the performance by the Issuer or any issuance of Qualified Capital Stock its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement) to which it is a party as of the CompanyIssue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or other paymentsthe performance by the Issuer or any of its Restricted Subsidiaries of obligations under, awards any future amendment to any such existing agreement or grants in cash, Qualified Capital Stock any similar agreement entered into after the Issue Date shall only be permitted by this clause (10) to the extent that the terms of the Company any such amendment or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who new agreement are not otherwise Affiliates of disadvantageous in any material respect to the Company Holders when taken as a whole as compared to the original agreement in effect on the Issue Date; and
(11) (i) the Burger King Acquisition Agreement, the Burger King Operating Agreement and made any ancillary agreements contemplated therewith, consistent in all material respects with the description thereof in the ordinary course of business;
Offering Memorandum, together with any changes, additions, modifications or amendments thereto as are not, taken as a whole, materially more disadvantageous to the Issuer or Holders and (4ii) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made transactions with Burger King Corporation in the ordinary course of business and otherwise in compliance with the terms of this Indenture which, in the good faith determination of the Issuer, are fair to the Issuer and its Restricted Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such time from an amount not to exceed $1.0 million in any calendar year;unaffiliated party; and
(512) the payment of reasonable directors’ fees, indemnification all fees 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant expenses related to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $1.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (a) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company must obtain a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Company otherwise permitted hereunder;
(6) any agreement or arrangement as in effect on the Issue Date (other than the Management Agreement) and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the holders of the Notes in any material respect.
(7) transactions in which the Company delivers to the Trustee 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 any relevant Restricted Subsidiaries;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders 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, however, 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 (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes in any material respect as determined in good faith by the Board of Directors of the Company;
(9) the transactions described in the Offering Memorandum and the payment of all fees and expenses in connection therewith;
(10) any contribution of capital to the Company;
(11) transactions permitted by, and complying with, Section 5.1;
(12) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Company;
(213) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, payment to the Company or the Restricted Subsidiary involved in such Affiliate TransactionPermitted Holders and any of their affiliates of annual management, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionconsulting, such Affiliate Transaction is in writing monitoring and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, advisory fees pursuant to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Management Agreement in an aggregate amount not to exceed $1.0 5.0 million in any calendar per year;
(5) the payment of , and reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessrelated expenses; and
(8) any 14) transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), effected as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectpart of a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (PNA Group Holding CORP)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Guarantor will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions arrangement (including including, without limitation, the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any Affiliate of the Parent Guarantor or for the benefit of any of their respective Affiliates Restricted Subsidiary (each, each an “Affiliate Transaction”), unless:
(1i) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Parent Guarantor or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent Guarantor or the relevant Restricted Subsidiary with a Person that is not an Affiliate of the Parent Guarantor or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;; and
(2ii) if such the Parent Guarantor delivers to the Trustee:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 millionU.S.$5.0 million (or the Dollar Equivalent thereof), a Board Resolution or an approval by the audit committee of the Parent Guarantor set forth in an Officer’s Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors Directors, or by a majority of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with members of the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transactionaudit committee, as the case may beapplicable; and
(32) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 millionU.S.$10.0 million (or the Dollar Equivalent thereof), in addition to the Board Resolution required in clause (1) of this Section 4.1(e)(ii), an opinion as to the fairness to the Parent Guarantor or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an internationally recognized accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transactioninvestment banking firm. The foregoing limitation does not limit, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall and will not apply to:
(1i) the payment of reasonable fees, compensation, benefits or indemnity to officers, employees and directors of the Parent Guarantor or any of its Restricted Subsidiaries;
(ii) transactions with between or among the Company Parent Guarantor, the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2iii) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to by Section 4.094.1(b);
(3iv) transactions with customers, clients, suppliers, distributors, generators, transporters or purchasers or sellers of goods or services, in each case in the ordinary course of business;
(v) loans and advances to officers, directors and employees of the Parent Guarantor or any Subsidiary in the ordinary course of business in an aggregate principal amount not exceeding U.S.$2.0 million at any time; and
(vi) any issuance of Qualified Capital Stock of the Companysecurities, or other payments, awards or grants in cash, Qualified securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock Stock, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of officers, directors and employees of the Company Parent Guarantor or otherwise, pursuant to employment arrangements or stock option plans for any of its subsidiaries approved by the benefit Board of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Directors in an aggregate amount not to exceed $1.0 U.S.$1.5 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt Dollar Equivalent thereof) during any fiscal year, calculated at the time of the proceeds of capital contributions such award or grant and without giving effect to subsequent changes in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectvalue.
Appears in 1 contract
Sources: Indenture (Camposol Holding PLC)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate involving aggregate consideration in excess of any of their respective Affiliates $5.0 million on or after the Issue Date (each, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Issuer or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Issuer or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is complies with this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in writing and excess of $25.0 million, an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Af- filiate Transaction from a financial point of view issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any consulting or employment agreement or arrangement entered into by the Issuer or any of its Restricted Subsidiaries approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; andIssuer;
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(12) transactions with between or among the Company and any Restricted Subsidiary or between or among Issuer and/or its Restricted Subsidiaries;
(23) any Permitted Investment payment of reasonable directors fees to directors of the Issuer and any Parent and the provision of customary indemnities to directors, officers, employees or consultants of the Issuer, and any Parent or any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Subsidiary;
(34) any issuance issuances and sales of Qualified Capital Stock of the Company, or Equity Interests (other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant than Disqualified Stock) to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company Issuer;
(5) any tax sharing agreement or arrangement and made payments pursuant thereto among the Issuer and its Subsidiaries and any other Person with which the Issuer or its Subsidiaries is required or permitted to file a consolidated, combined or unitary tax return or with which the Issuer or any of its Restricted Subsidiaries is or could be part of a consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited by this Indenture;
(6) Restricted Payments that are permitted by Section 4.11 or any Permitted Investments;
(7) the payment (directly or through any Parent) of annual management, consulting, monitoring and advising fees and related expenses to the Equity Sponsor and its respective Affiliates pursuant to management agreements entered into in connection with the Transactions and as described in the Offering Memorandum;
(8) payments by the Issuer or any of its Restricted Subsidiaries to the Equity Sponsor and its Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Issuer in good faith; provided that the maximum aggregate amount of any such fees in any 12-month period shall not exceed 1.25% of the aggregate transaction value (including enterprise value in connection with acquisitions or divestitures) (or portion thereof) in respect of which such services are rendered (excluding, in any case, commitment or similar fees for providing financing);
(9) loans to employees that are approved in good faith by a majority of the Board of Directors of the Issuer in an amount not to exceed $5.0 million outstanding at any time and advances and expense reimbursements to employees in the ordinary course of business;
(410) advances to officers, directors, employees agreements (and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5payments relating thereto) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)Stock Purchase Agreement and as described in the Offering Memorandum, as the same may be amended, modified or replaced from time to time time, so long as such any amendment, modification or replacement is no not materially less favorable to the Company Issuer and the its Restricted Subsidiaries than the agreement described in the Offering Memorandum and in effect on the date of this Indenture;
(11) transactions with a joint venture engaged in a Permitted Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Issuer, its Restricted Subsidiaries and Persons who are not Affiliates of the Issuer;
(12) transactions between a Receivables Subsidiary and any material respectPerson in which the Receivables Subsidiary has an Investment;
(13) transactions with customers, clients, suppliers or purchasers or sellers of goods, in each case in the ordinary course of business; and
(14) transactions which have been approved by a majority of the disinterested members of the Board of Directors and with respect to which an Independent Financial Advisor has delivered an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such transaction from a financial point of view.
Appears in 1 contract
Sources: Indenture (Nortek Inc)
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person or, if there is no such comparable transaction, on terms that are fair and reasonable to the Company or such Restricted Subsidiary; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 20.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing 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 shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 75.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that as to the terms fairness to the Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in prior paragraph of this Section 4.13 shall not apply to4.11:
(1) transactions with any employment, equity award, equity option or among the Company and any Restricted Subsidiary equity appreciation agreement or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of plan entered into by the Company or otherwise, pursuant to employment arrangements any of its Restricted Subsidiaries or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made General Partner in the ordinary course of business;
(42) advances to officers, directors, employees and consultants who are not otherwise Affiliates transactions between or among any of the Company made 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 agreements disclosed in the ordinary course Company’s Annual Report on Form 10-K for the year ended December 31, 2004 (including the exhibits thereto) that are also identified in Annex C to this Indenture, in each case as such agreements are in effect on the date of business this Indenture, and in an amount not any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to exceed $1.0 million the Company in any calendar yearmaterial respect than the agreement so amended or replaced;
(5) the payment of reasonable directors’ feescustomary compensation, indemnification and similar arrangementsother benefits made available to officers, consulting feesdirectors or employees of the Company, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee a Restricted Subsidiary of the Company or the General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) the provision by Persons who may be deemed Affiliates of holders of Equity Interests of the Company, of commercial banking, trust, lending or financing, investment, financial advisory or similar services, to the Company or its Restricted Subsidiaries, on customary term;
(7) sales of any Restricted Subsidiary securities to Affiliates of the Company provided that the syndicate involved in such sale of securities includes an unaffiliated investment bank of national standing;
(8) in the case of gathering, transportation, marketing, hedging, production handling, operating, construction, storage, platform use, or other operational contracts, any such contracts are entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of 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 receipt Company nor any Restricted Subsidiary has entered into a similar contract with a third party, that the terms are no less favorable than those available from third parties on an arm’s-length basis, as determined by the Board of Directors of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessGeneral Partner; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the 9) Restricted Subsidiaries in any material respectPayments that are permitted by Section 4.07 hereof.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall notNeither FelCor LP nor FelCor shall, and neither FelCor LP nor FelCor shall not cause or permit any of their respective Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions (including including, without limitations, the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any holder (or for the benefit any Affiliate of such holder) of 5% or more of any class of Capital Stock of FelCor LP or FelCor or with any Affiliate of FelCor LP or FelCor or any of their respective Affiliates (eachRestricted Subsidiaries, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, is on except upon fair and reasonable terms which are no less favorable to the Company FelCor LP, FelCor or such Restricted SubsidiarySubsidiary than could be obtained, as at the case may betime of such transaction or, than would be available if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable transaction on an arm’s-length basis transaction with a Person that is not such a holder or an unaffiliated third party;
Affiliate. The foregoing limitation shall not limit, and shall not apply to: (2i) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and transactions (A) approved by a majority of the disinterested members independent directors of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisionsFelCor or (B) for which FelCor LP, or, in the event that there are no disinterested directors, FelCor or any Restricted Subsidiary delivers to the Trustee has received a written opinion from an Independent Financial Advisor of a nationally recognized investment banking firm stating that the terms of transaction is fair to FelCor LP, FelCor or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to the Company ; (ii) any transaction solely between FelCor LP or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company FelCor and any of their respective Wholly Owned Restricted Subsidiary Subsidiaries or solely between or among Wholly Owned Restricted Subsidiaries;
; (2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5iii) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses customary fees and expenses to directors of FelCor who are not employees of FelCor; (iv) any payments 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 reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any other transactions undertaken pursuant to any contractual obligations tax-sharing agreement between FelCor LP or FelCor and any other Person with which FelCor LP or FelCor files a consolidated tax return or with which FelCor LP or FelCor is part of a consolidated group for tax purposes; or (v) any Restricted Payments not prohibited by Section 4.04. Notwithstanding the foregoing, any transaction or series of related transactions covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (v) of this paragraph, (a) the aggregate amount of which exceeds $2 million in existence on value, must be approved or determined to be fair in the Issue Date manner provided for in clause (i)(A) or on (B) above, and (b) the Closing Date and entered into aggregate amount of which exceeds $5 million in connection with value, must be determined to be fair in the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries manner provided for in any material respectclause (i)(B) above.
Appears in 1 contract
Sources: Guaranty Agreement (Kingston Plantation Development Corp)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary compensation and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(6) the Transactions and the payment of all fees and expenses in connection therewith;
(7) any contribution of capital to the Company;
(8) transactions permitted by, and complying with, Article V and Section 10.5 hereof;
(9) any transaction with a joint venture, partnership, limited liability company or other entity, including the Castings Joint Venture, that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(10) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(111) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Ashland Inc.)
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any of their respective Affiliates the Company (each, an “Affiliate Transaction”), involving aggregate payments or consideration in excess of $1 million, unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on by the Company or such Restricted Subsidiary with a Person that is not an arm’s-length basis with an unaffiliated third party;Affiliate of the Company; and
(2) if 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 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 related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, complies with this Section and that such Affiliate Transaction is in writing and or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Company; and
(B) with respect to any Affiliate Transaction and determined that such or series of related Affiliate Transaction complies with Transactions involving aggregate consideration in excess of $50 million, an opinion as to the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, fairness to the Company or the such Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if of such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:provisions of paragraph (a):
(1) any employment, consulting or similar agreement or arrangement, stock option or stock ownership plan, employee benefit plan, officer or director indemnification agreement, restricted stock 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 issuances of securities pursuant thereto;
(2) transactions with between or among the Company and any Restricted Subsidiary or between or among and/or its Restricted Subsidiaries;
(23) any Permitted Investment and any Restricted Payment transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or other payment through a Subsidiary, an Equity Interest in, or Investment permitted to be made pursuant to Section 4.09controls, such Person;
(34) reasonable fees 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;
(5) any issuance of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of the Company to, or receipt of a capital contribution from, Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07 or any Permitted Investments;
(7) loans or advances to employees in the ordinary course of business or consistent with past practice;
(8) advances to or reimbursements of employees for moving, or other paymentsentertainment and travel expenses, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, drawing accounts and consultants who are not otherwise Affiliates of the Company and made similar expenditures in the ordinary course of business;
(49) advances to officers, directors, employees and consultants who are not otherwise Affiliates the performance of obligations of the Company made 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 will 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;
(10) (A) guarantees of performance by the Company and its Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of business, except for Guarantees of Indebtedness in respect of borrowed money, and (B) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(11) 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 direct or indirect parent company of the Company, as the case may be, on any matter involving such other Person; and
(12) 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 and otherwise in an amount not to exceed $1.0 million in any calendar year;
(5) compliance with the payment of reasonable 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 terms of the Company or any Restricted Subsidiary entered into Indenture, provided that in the ordinary course reasonable determination of business (including reasonable benefits thereunder);
(6) issuances and sales the Board of Qualified Capital Stock Directors of the Company or the receipt senior management of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any Company, such transactions undertaken pursuant to any contractual obligations in existence are on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no terms not materially less favorable to the Company and or the relevant Restricted Subsidiaries Subsidiary than those that could reasonably be expected to be obtained in any material respecta comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company.
Appears in 1 contract
Sources: Indenture (PDC Energy, Inc.)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend or conduct any in one transaction or series of related transactions (including the purchasetransactions, saletransfer any of its assets to, lease or exchange of purchase any assets from, or the rendering of enter into any service) with contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any affiliate of any of their respective Affiliates Parent (each, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction, taken as a whole, is on unless the terms which thereof are no less favorable to the Company Parent or such Restricted Subsidiary, as Subsidiary than those that could be obtained at the case may be, than would be available time of such transaction in a comparable transaction on an arm’sarm's-length basis dealings with a Person that is not such an unaffiliated third party;
(2) if such affiliate; provided that the Board of Directors must approve each Affiliate Transaction or series of related Affiliate Transactions that involves aggregate payments or other consideration having assets or services with a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and . This approval must be evidenced by a majority of the disinterested members of board resolution that states that the Board of Directors of the Company shall have approved such Affiliate Transaction and has determined that such Affiliate Transaction the transaction complies with the foregoing provisions; provided, orfurther that if Parent or any Restricted Subsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $15.0 million, in then prior to the event that there are no disinterested directorsconsummation of such Affiliate Transaction, the Trustee has received Parent must obtain a written favorable opinion from an Independent Financial Advisor stating that the terms of it has determined such Affiliate Transaction are to be fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate TransactionHolders, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written deliver that opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beTrustee.
(b) Notwithstanding The provisions of clause (a) above will not prohibit the foregoing, the restrictions set forth in this Section 4.13 shall not apply tofollowing:
(1) transactions with exclusively between or among (a) Parent and one or more Restricted Subsidiaries or (b) Restricted Subsidiaries; provided, in each case, that no affiliate of Parent (other than another Restricted Subsidiary) owns Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the Company Board of Directors;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between Parent and/or one or more Subsidiaries, on the one hand, and any other Person with which Parent or such Subsidiaries are required or permitted to file a consolidated tax return or with which Parent or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by Parent and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) loans and advances permitted by clause (6) of the definition of "Permitted Investments";
(5) Restricted Payments of the type described in clause (i), (ii) or (iii) of the definition of "Restricted Payment" and which are made in accordance with Section 4.10;
(6) any transaction with an affiliate where the only consideration paid by Parent or any Restricted Subsidiary is Qualified Stock;
(7) the provision of management, financial and operational services by Parent and its Subsidiaries to affiliates of Parent in which Parent or between or among any Restricted Subsidiary has an Investment and the payment of compensation for such services; provided that the Board of Directors has determined that the provision of such services is in the best interests of Parent and the Restricted Subsidiaries;
(2) 8) transactions between Parent or any Permitted Investment Subsidiary and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture;
(39) transactions with a Person that is an affiliate solely because Parent or any issuance of Qualified Restricted Subsidiary owns Capital Stock in such Person; provided that no affiliate of the Company, or Parent (other payments, awards or grants in cash, Qualified than a Restricted Subsidiary) owns Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;such Person; or
(410) advances to officers, directors, employees purchases and consultants who are not otherwise Affiliates sales of the Company made raw materials or inventory in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectmarket terms.
Appears in 1 contract
Sources: Indenture (Terra Capital Inc)
Limitation on Transactions with Affiliates. (a) The Company Co-Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Co-Issuer or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’sby the Co-length basis Issuer or such Restricted Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such the Co-Issuer delivers to the Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 2.5 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies (b) with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 10.0 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) investment banking firm of national standing. Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 following items shall not apply to:
be deemed to be Affiliate Transactions: (1i) transactions any employment arrangements with any executive officer of the Co-Issuer or among the Company and any a Restricted Subsidiary that is entered into by the Co-Issuer or between or among any of its Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Subsidiaries in the ordinary course of business and consistent with compensation arrangements of similarly situated executive officers at comparable companies engaged in Permitted Businesses, (ii) transactions between or among the Co-Issuer and/or its Restricted Subsidiaries, (iii) payment of outside directors’ fees in an aggregate annual amount not to exceed $1.0 million in any calendar year;
50,000 per Person, (5iv) Restricted Payments and Permitted Investments that are permitted by Section 4.07 and (v) the payment issuance or sale of reasonable 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 Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectCo-Issuer.
Appears in 1 contract
Sources: Indenture (Sba Communications Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectlyindirectly make any payment to, conduct or sell, lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter into, renewmake, amend amend, renew or conduct extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $10 million, unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on fair and reasonable terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis transaction by the Company or such Restricted Subsidiary with a Person that is not an unaffiliated third party;Affiliate of the Company or any Restricted Subsidiary; and
(2) if 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 million, a Board Resolution attached to an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event this covenant and that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves has been approved by a majority of the Disinterested Members; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million150 million or 3% of Consolidated Total Assets, an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such Affiliate Transaction or series of related Affiliate Transactions is in writing and fair to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of Company or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to:4.05(a):
(1) transactions with between or among the Company and any Restricted Subsidiary or between or among its Restricted Subsidiaries;
(2) any Restricted Payments that are permitted under Section 4.04 and Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Investments;
(3) any issuance or sale of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations agreements or arrangements in existence effect on the Issue Date (and described in the Offering Memorandum, or on the Closing Date and entered into in connection with the Transactions)any amendment, modification, or supplement thereto or renewal or replacement thereof, as the same may be amended, modified or replaced from time to time so long as such amendmentagreement or arrangement, modification as so amended, modified, supplemented, renewed or replacement replaced, taken as a whole, is no less favorable not materially more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date as determined by the Disinterested Members of the Board of Directors of the Company evidenced by a Board Resolution;
(5) payments by the Company (and any direct or indirect parent thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent) and its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries; provided that in each case the amount of such payments in any material respectfiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(6) payment of reasonable and customary fees to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Company or any Subsidiary thereof; and
(7) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any Restricted Subsidiary with officers and employees of the Company or any Subsidiary thereof and the payment of compensation to officers and employees of the Company or any Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment have been approved by a majority of the Disinterested Members.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Parent (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Parent or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Parent or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Parent delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Parent approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Parent must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Parent or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view.
(b) The foregoing limitation does not limit, and shall not apply to:
(i) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2ii) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or reasonable and customary fees and indemnities and other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested benefits to members of the Board of Directors of the Company Parent or a Restricted Subsidiary who are directors;
(iii) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Parent or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(iv) transactions between or among the Parent and/or its Restricted Subsidiaries;
(v) the payment of reasonable and customary fees paid to, and indemnities provided on behalf of, directors, officers, employees or members of management of the Parent or ▇▇▇▇▇▇▇ or any Restricted Subsidiary of the Parent;
(vi) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not materially less favorable, taken as a whole, to the Holders of the Notes;
(vii) the Transactions and the payment of all fees and expenses in connection therewith;
(viii) any contribution of capital to the Parent;
(ix) transactions permitted by, and complying with the provisions of Section 5.1 hereof;
(x) the payment, pursuant to the Management Agreement dated November 18, 2008 among the Parent, the Subsidiaries of the Parent and the Sponsor (as amended from time to time, the “Management Agreement”) of:
(1) management, consulting, monitoring, and advisory fees to Sponsor or its Affiliates not to exceed $500,000 per annum, so long as no Default or Event of Default has occurred and is continuing or would result therefrom (the “Management Fees”); provided that if at any time any such Management Fees to Sponsor or its Affiliates are not permitted to be paid as a result of the existence of a Default or an Event of Default, then (A) such amounts shall continue to accrue, and (B) any such amounts that have accrued but which were not permitted to be paid may be paid at any time after such Default or Event of Default is cured or waived and, if both before and after giving effect to such payment, no Default or Event of Default has occurred and is continuing;
(2) so long as no Default or Event of Default shall have approved such Affiliate Transaction occurred and determined that such Affiliate Transaction complies with be continuing, or would result therefrom, any financial advisory, financing, underwriting, or placement fee not to exceed 1.0% of the foregoing provisions, or, in aggregate enterprise value of any transaction structured by the event that there are no disinterested directors, Sponsor involving the Trustee has received a written opinion from an Independent Financial Advisor stating that Parent or any of its Subsidiaries pursuant to the terms of the Management Agreement; provided that if at any time any such Affiliate Transaction are fairfee to Sponsor or its Affiliates is not permitted to be paid as a result of the existence of a Default or an Event of Default, from a financial point then such fee shall continue to accrue, and may be paid at any time after such Default or Event of viewDefault is cured or waived and, if both before and after giving effect to the Company such payment, no Default or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beEvent of Default has occurred and is continuing; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing reasonable and documented out-of-pocket expenses and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, indemnities payable pursuant to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted SubsidiariesManagement Agreement;
(2xi) any Permitted Investment and any Restricted Payment transaction with a joint venture, partnership, limited liability company or other payment entity that would constitute an Affiliate Transaction solely because the Parent or Investment permitted to be made pursuant to Section 4.09a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(3xii) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, loans and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;consistent with past practice; and
(5xiii) the payment transactions with customers, clients, suppliers or purchasers or sellers of reasonable directors’ feesgoods or services, indemnification and similar arrangementsin each case, 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence consistent with past practice and on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no terms that are not materially less favorable to the Company and Parent or such Restricted Subsidiary, as the Restricted Subsidiaries case may be, as determined in any material respectgood faith by the Parent, than those that could be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of the Parent.
Appears in 1 contract
Sources: Indenture (Bumble Bee Capital Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $2.5 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Issuer must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Issuer or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 and Permitted Investments permitted under this Indenture;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 millionreasonable and customary fees, such Affiliate Transaction is in writing expenses and a majority of the disinterested indemnities to members of the Board of Directors of the Company shall have Issuer or a Restricted Subsidiary;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) payments by the Issuer or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the Disinterested Directors in good faith; provided that the aggregate amount of such Affiliate Transaction payments may not exceed $5.0 million in any calendar year;
(5) transactions between or among the Issuer and/or its Restricted Subsidiaries;
(6) any agreement or arrangement as in effect on the Issue Date and determined that any amendment or modification thereto or replacement thereof so long as such Affiliate Transaction complies with the foregoing provisions, oramendment or modification or replacement is not, in the event that there are no disinterested directorsgood faith judgment of the Board of Directors of the Issuer, more disadvantageous to Holders in any material respect;
(7) transactions in which the Issuer delivers to the Trustee has received a written opinion from an Independent Financial Advisor stating to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(2) 8) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(39) any issuance the payment to the Permitted Holders of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant up to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made $5.5 million in the ordinary course aggregate of businessfees and expenses related to the transactions disclosed in the Offering Memorandum;
(410) advances to officerstransactions with customers, directorsclients, employees and consultants who are not otherwise Affiliates suppliers or purchasers or sellers of the Company made goods or services, in each case, in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is terms that are no less favorable to the Company and Issuer or such Restricted Subsidiary, as the Restricted Subsidiaries case may be, as determined in any material respectgood faith by the Issuer, than those that could be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of the Issuer; and
(11) transactions effected as part of a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (Kemet Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such the Company delivers to the Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million200,000, a Board Resolution certifying that such Affiliate Transaction is in writing complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies (b) with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million2,000,000, an opinion as to the fairness to the Company or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) investment banking firm of national standing. Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 following items shall not apply to:
be deemed to be Affiliate Transactions: (1i) transactions with between or among the Company and any and/or its Restricted Subsidiary Subsidiaries or between or among its Restricted Subsidiaries;
, including the Incurrence of intercompany Indebtedness permitted by Section 10.12; (2ii) any Permitted Investment and any Restricted Payment or other the payment or Investment permitted of reasonable directors fees to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, or indemnification and similar arrangements, consulting fees, employee salaries, bonuses or bonuses, employment agreements, compensation or employee benefit arrangements and or incentive arrangements with any officer, director or employee of the Company or any Restricted Subsidiary entered into (including benefits under the foregoing); (iii) Restricted Payments made in compliance with Section 10.10; and (iv) loans or advances to employees and reimbursement of actual out-of-pocket expenses incurred by officers, directors and employees, in each case in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant an amount not to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectexceed $1,000,000.
Appears in 1 contract
Sources: Indenture (Texas Petrochemicals Lp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate or any affiliated professional associations or professional corporations which employ physicians and other professionals who provide healthcare services for the Company’s occupational and health services centers (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction by the Company or such Restricted Subsidiary made on an arm’s-length basis with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 5 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with clause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 15 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted customary directors’ fees to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) the payment of Affiliate Management Fees in an amount in any calendar year not to exceed the greater of (a) $1 million and made in the ordinary course (b) 1% of businessConsolidated EBITDA;
(4) advances payments by the Company or any of its Restricted Subsidiaries to officers▇▇▇▇▇ ▇▇▇▇▇▇, directors▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and their respective Affiliates made for any financial advisory, employees and consultants who financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are not otherwise Affiliates approved in good faith by a majority of the Board of Directors of the Company or a committee thereof consisting of disinterested members;
(5) loans or advances to employees in accordance with past practice made in the ordinary course of business and which are approved in an amount not to exceed $1.0 million in any calendar year;
(5) good faith by a majority of the payment Board of reasonable 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 Directors of the Company or any Restricted Subsidiary entered into in the ordinary course a committee thereof consisting of business (including reasonable benefits thereunder)disinterested members;
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions any agreement as in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence effect on the Issue Date or any amendment thereto (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as any such amendment, modification or replacement amendment is no less favorable to the Company and its Restricted Subsidiaries);
(7) any payment pursuant to any tax sharing agreement between the Company and Holdings or any other Person with which the Company is required or permitted to file a consolidated tax return or with which the Company is or could be part of a consolidated, combined or unitary group for tax purposes; provided that in no event shall the amount permitted to be paid pursuant to all such agreements exceed the tax liabilities attributable solely to the Company and its Restricted Subsidiaries (whether as a consolidated, combined or unitary group);
(8) Restricted Payments that are permitted by Section 1009;
(9) customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(10) any transaction involving ordinary course investment banking, merchant banking, commercial banking or related activities; and
(11) issuances or sales by the Company of Equity Interests (other than Disqualified Stock) or any contribution to the capital of the Company or any Restricted Subsidiary. Notwithstanding the foregoing, the Holders will be entitled to receive payment in full in cash of all amounts due or to become due in respect of the Securities before any payment is made with respect to Affiliate Management Fees in the event of any distribution to creditors of the Company in any material respectInsolvency or Liquidation Proceeding with respect to the Company. No payments of Affiliate Management Fees shall be made by the Company or any of its Restricted Subsidiaries if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which Affiliate Management Fees are to be paid is less than 1.75 to 1; provided, however, that such payments due but not paid shall accrue and shall be paid only after such time as the Fixed Charge Coverage Ratio for a four full fiscal quarter period is no longer less than or equal to 1.75 to 1. For the avoidance of doubt, in connection with any transaction between Holdings and the Company, a member of the Board of Directors of the Company shall not cease to be a disinterested director solely because such director also serves on the board of directors of Holdings.
Appears in 1 contract
Sources: Indenture (Oci Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company Tembec Inc. shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business payment to, or enter intosell, renewlease, amend transfer or conduct otherwise dispose of any of its properties or assets to, or purchase any property or assets from in any transaction or series of related transactions (including the purchasetransactions, saleor enter into or make or amend, lease any contract, agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to Tembec Inc. or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by Tembec Inc. or such Restricted Subsidiary with an unaffiliated third party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company delivers to the Trustee a resolution adopted by the Board of Directors of the Company approving such Affiliate Transaction and an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company obtains and delivers to the Trustee a written opinion of an investment banking, accounting, consulting or appraisal firm of national standing in Canada or the United States (an “Independent Financial Advisor”) to the effect that the transaction is fair, from a financial point of view, to Tembec Inc. or such Restricted Subsidiary, as the case may be. The foregoing limitation does not limit, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Restricted Payments that are permitted by Section 4.7 and any Restricted Subsidiary or between or among Restricted SubsidiariesPermitted Investments;
(2) any Permitted Investment and employment or consulting agreement, director’s engagement agreement, employee benefit plan, officer or director indemnification agreement, severance arrangement, compensation or any similar arrangement entered into by Tembec Inc. or any of its Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Subsidiaries in the ordinary course of business or approved in good faith by the relevant Board of Directors and payments pursuant thereto;
(3) the payment of reasonable fees, compensation and other benefits (including retirement, health, stock, option, deferred compensation and other benefit plans) and indemnities to directors, officers and employees of Tembec Inc. and its Restricted Subsidiaries;
(4) transactions between or among Tembec Inc. and one (1) or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in an amount not to exceed $1.0 million connection with such transaction) or between or among one (1) or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in any calendar yearconnection with such transaction);
(5) the payment any transaction with a Person (other than an Unrestricted Subsidiary of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses Tembec Inc.) which would constitute an Affiliate Transaction solely because Tembec Inc. or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Company or any a Restricted Subsidiary entered into in the ordinary course owns, directly or indirectly, Equity Interests of business (including reasonable benefits thereunder)or otherwise controls such Person;
(6) issuances the issuance or sale of Equity Interests (other than Disqualified Stock) of Tembec Inc. (including, without limitation, to officers, directors and sales of Qualified Capital Stock of the Company employees pursuant to stock option, stock ownership or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtednessother equity-based incentive plans);
(7) a provision any agreement, instrument or purchase of goods or services arrangement as in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence effect on the Issue Date (and any transactions contemplated thereby and amendment or on the Closing Date and entered into in connection with the Transactions)modification thereto or replacement thereof, as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no not materially less favorable favorable, taken as a whole, to the Holders of the Notes than the original agreement, instrument or arrangement as in effect on the Issue Date;
(8) transactions as to which the Company delivers to the Trustee a written opinion of an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view or otherwise, to Tembec Inc. or the Restricted Subsidiary that is a party thereto, as the case may be;
(9) any contribution of capital to the Company or Tembec Inc.;
(10) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not less favorable, taken as a whole, to Tembec Inc. or such Restricted Subsidiary, than those that might reasonably have been obtained in a comparable arm’s-length transaction with an unaffiliated third party; and
(11) sales or other dispositions of accounts receivable and related assets and interests therein of the Restricted Subsidiaries type specified in the definition of “Receivables Transaction” to a Receivables Subsidiary in a Receivables Transaction and Permitted Investments and other transactions in connection with a Receivables Transaction and any material respectother Standard Securitization Undertakings in connection with a Receivables Transaction.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into or enter into, renew, amend or conduct suffer to exist any transaction or series of related re- lated transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, lease property or exchange services) with any Affiliate (including entities in which the Company or any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any assets or Affiliate Transaction entered into prior to the rendering of any service) with or for the benefit of any of their respective Affiliates Issue Date unless (each, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on between or among the Company and/or its Wholly-Owned Subsidiaries; or (ii) the terms which of such Affiliate Transaction are no less favorable fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to at least as favorable as the terms which could be obtained by the Company or the such Restricted Subsidiary involved in such Affiliate TransactionSubsidiary, as the case may be; and
(3) if such , in a comparable transaction made on an arm's-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value value in excess of $15.0 million2,000,000 which is not permitted under clause (i) above, the Company must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction is complies with clause (ii) above. In transactions with a value in writing and excess of $10,000,000 which are not permitted under clause (i) above, the Trustee has received Company or such Restricted Subsidiary must obtain a written opinion as to the fairness of such a transaction from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beindependent investment banking firm.
(b) Notwithstanding the foregoing, the restrictions set forth in The foregoing provisions of this Section 4.13 shall 4.16 will not apply to:
to (1i) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to that is not prohibited by Section 4.09;
4.13, (3ii) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of reasonable and customary fees paid by the Company or otherwiseits Restricted Subsidiaries to their respective directors or (iii) customary investment banking, pursuant underwriting, placement agent or financial advisor fees paid in connection with services rendered to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectits Subsidiaries.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Holdings shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend 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 assets to, or the rendering of purchase any service) with assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate payments or consideration to or from Holdings or a Restricted Subsidiary in excess of $5.0 million, unless:
(1) the terms of such Affiliate Transaction, taken as a whole, is on terms which Transaction or series of related Affiliate Transactions are no not materially less favorable to the Company Holdings or such Restricted Subsidiary, as the case may be, than would those that could reasonably be available expected to have been obtained in a comparable transaction on at the time of such transaction in arm’s length dealings with a Person who is not such an arm’s-length basis Affiliate, or if in the good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with an unaffiliated third party;which to compare such Affiliate Transaction or series of related Affiliate Transactions, or are otherwise fair to Holdings or such Restricted Subsidiary from a financial point of view; and
(2) if the Issuers deliver to the Trustee, (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value in excess of $20.0 million, an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves complies with Section 4.11(a)(1) and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other consideration having a Fair Market Value value in excess of $5.0 40.0 million, an Officer’s Certificate certifying that such Affiliate Transaction is in writing or series of related Affiliate Transactions complies with Section 4.11(a)(1) and which sets forth and authenticates a resolution that has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beHoldings.
(b) Notwithstanding the foregoing, the The foregoing restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among to the Company and any Restricted Subsidiary or extent between or among (a) Holdings and one or more Restricted Subsidiaries or a Person that becomes a Restricted Subsidiary as a result of such transaction or (b) Restricted Subsidiaries;
(2) employment agreements, equity awards, compensation plans, deferred compensation plans, severance agreements and arrangements, director, trustee, officer and employee compensation (including bonuses) and other benefits (including pursuant to any Permitted Investment employment agreement or any retirement, health, stock option or other benefit plan), payments of fees, reasonable out-of-pocket costs and indemnities to employees, officers, directors and consultants of Holdings or any of its Restricted Subsidiaries and indemnification arrangements, including any other compensation plans, agreements or arrangements, benefit plans, retirement plans, savings plans, vacation plans and directors and officers insurance arrangements entered into by Holdings or any Restricted Payment Subsidiary in the ordinary course of business and payments pursuant thereto, in each case, as determined in good faith by Holdings’ Board of Directors or other payment or Investment permitted to be made pursuant to Section 4.09senior management;
(3) any issuance of Qualified Capital Stock of the Companysecurities, or other payments, awards or grants in cash, Qualified Capital Stock securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership, in each case, as determined in good faith by Holdings’ Board of Directors or senior management;
(4) Permitted Investments or Restricted Payments which are made in accordance with the Company covenant described under Section 4.7;
(5) any agreement in effect on the Issue Date (and performance thereunder) or otherwiseas thereafter amended or replaced in any manner that, pursuant taken as a whole, is not materially less advantageous to employment arrangements Holdings than such agreement as it was in effect on the Issue Date;
(6) any transaction with a Person (other than an Unrestricted Subsidiary of Holdings) which would constitute an Affiliate of Holdings solely because Holdings or stock option plans for the benefit of employees, a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(7) loans or advances to officers, directors, consultants and consultants who employees of Holdings or its Restricted Subsidiaries that are not Permitted Investments;
(8) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise Affiliates in compliance with the terms of this Indenture; provided that in the reasonable determination of the Company Board of Directors or the senior management of Holdings, such transactions are on terms not materially less favorable to Holdings or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Holdings;
(9) transactions with Restricted Subsidiaries for the purchase or sale of goods, products, parts and made services entered into in the ordinary course of business;
(410) advances to officersthe issuance, directorssale or transfer of any Qualified Equity Interests of Holdings and the granting of registration and other customary rights in connection therewith to, employees and consultants who are not otherwise or the receipt of capital contributions from, Affiliates of Holdings;
(11) any transaction where the Company made only consideration paid by Holdings or the relevant Restricted Subsidiary is Qualified Equity Interests of Holdings;
(12) any purchase by any direct or indirect parent (other than Holdings) of the Equity Interests of Holdings and the purchase by Holdings of Equity Interests in any Restricted Subsidiary;
(13) transactions between Holdings or any Restricted Subsidiary and any Person, a director of which is also a director of Holdings or any direct or indirect parent company of Holdings, and such director is the sole cause for such Person to be deemed an Affiliate of Holdings or any Restricted Subsidiary; provided, however, that such director shall abstain from voting as a director of Holdings or such direct or indirect parent company, as the case may be, on any matter involving such other Person;
(14) the entering into of a tax sharing agreement, or payments pursuant thereto, between Holdings and/or one or more Subsidiaries, on the one hand, and any other applicable Person;
(15) transactions with respect to which Holdings or a Restricted Subsidiary delivers to the Trustee a letter from an independent investment bank, appraisal firm, valuation firm or accounting firm stating that the transaction is fair to Holdings or such Restricted Subsidiary, as the case may be, from a financial point of view or otherwise complies with the standard in Section 4.11(a)(1);
(16) pledges by Holdings or a Restricted Subsidiary of Equity Interests of an Unrestricted Subsidiary for the benefit of lenders or other creditors of the Unrestricted Subsidiary;
(17) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to Holdings and the Restricted Subsidiaries than those that would have been obtained in a comparable transaction by Holdings or such Restricted Subsidiary with an amount unrelated person, as determined in good faith by Holdings’ Board of Directors or senior management, or are on terms at least as favorable to Holdings or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not to exceed $1.0 million in any calendar yearan Affiliate of Holdings;
(518) payments or loans (or cancellation of loans) to employees or consultants that are: (a) approved by a majority of the disinterested directors of Holdings or the Issuers in good faith; (b) made in compliance with applicable law; and (c) otherwise permitted by this Indenture;
(19) the payment existence of, or the performance by any of reasonable directors’ feesHoldings, indemnification the Issuers or a Restricted Subsidiary of its obligations under the terms of, any customary registration rights agreement to which such entity is a party or becomes a party in the future;
(20) intercompany transactions undertaken in good faith (as certified by an Officer of Holdings) for the purpose of improving the consolidated tax efficiency of Holdings 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 the Restricted Subsidiaries as permitted by this Indenture;
(21) Investments by Affiliates in securities of the Company Holdings or any Restricted Subsidiary entered into (so long as the Investment is being generally offered to other investors on the same or more favorable terms), any participation in a tender or exchange offer for securities or debt instruments issued by Holdings or any of its Restricted Subsidiaries that are conducted on arm’s-length terms and provide for the ordinary course same price or exchange, as the case may be, to all holders accepting such tender or exchange offer, and payments to an Affiliate in respect of business (including reasonable benefits thereunder)notes, capital stock or Indebtedness of Holdings or any Restricted Subsidiary on the same basis as concurrent payments made or offered in respect thereof to non-Affiliates;
(622) issuances central services (including, without limitation, management information systems, pension and sales of Qualified Capital Stock of the Company profit sharing plans and human resources) provided by Holdings or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Restricted Subsidiary to any Affiliates;
(723) a provision or purchase of goods or services in the ordinary course of businessQualified Receivables Financings; and
(8) any transactions undertaken pursuant 24) dividends and distributions to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company Holdings and the Restricted Subsidiaries in by any material respectUnrestricted Subsidiary or joint venture.
Appears in 1 contract
Sources: Indenture (Venator Materials PLC)
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing 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 shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 25.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that as to the terms fairness to the Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in prior paragraph of this Section 4.13 shall not apply to4.11:
(1) transactions with any employment equity award, equity option or among the Company and any Restricted Subsidiary equity appreciation agreement or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of plan entered into by the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit any of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made 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) advances 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, employees and consultants who are not otherwise ’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(6) Restricted Payments that are permitted by Section 4.07;
(7) transactions effected in accordance with the terms of the Administrative and Operating Services Agreement that are described under the caption “Certain Relationships and Related Transactions — Copano/Operations, Inc.” in the Offering Memorandum, as such agreement is in effect on the date of this Indenture, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Company made in any material respect than the agreement so amended or extended;
(8) the purchase by the Company or any of its Restricted Subsidiaries of natural gas from J▇▇▇ ▇. ▇▇▇▇▇, ▇▇., or any of his Affiliates and any related transactions, or the gathering or compressing of any natural gas by the Company or any of its Restricted Subsidiaries for the account of J▇▇▇ ▇. ▇▇▇▇▇, ▇▇. or any of his Affiliates and any related transactions, in each case in the ordinary course of business;
(9) the guarantee by ScissorTail Energy LLC of the performance by Southern Dome, LLC of its obligations under the Gas Purchase and Processing Agreement effective as of May 1, 2005 between Southern Dome, LLC and New Dominion, L.L.C., as such agreement is in effect on the date of this Indenture, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Company in any material respect than the agreement so amended or extended;
(10) transactions effected in accordance with the terms of the Management Agreement dated as of August 1, 2005 between Southern Dome, LLC and ScissorTail Energy LLC, as such agreement is in effect on the date of this Indenture, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Company in any material respect than the agreement so amended or extended; and
(11) the transportation of natural gas across the gathering systems of W▇▇▇/D▇▇▇▇ Gatherers and its Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements consistent with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectpast practices.
Appears in 1 contract
Sources: Indenture (Copano Energy, L.L.C.)
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any Parent (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction is on terms that are not materially less favorable to Parent or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by Parent or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, Parent delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of Parent approving such Affiliate Transaction. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of Parent or a Restricted Subsidiary who are outside directors;
(3) any reasonable or customary employment agreement, consulting agreement, severance agreement, employee benefit plan, compensation arrangement, officer or director indemnification agreement or any similar arrangement entered into by, or policy of, Parent or any of its Restricted Subsidiaries and payments pursuant thereto;
(4) transactions between or among Parent and/or its Restricted Subsidiaries;
(5) the sale or issuance of Capital Interests (other than Redeemable Capital Interests) of Parent;
(6) any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous in any material respect (as determined in good faith by the senior management or the Board of Directors of the Issuer or any direct or indirect parent of the Issuer) to the holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(7) transactions approved by the majority of Disinterested Directors in which Parent delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view, to Parent or any relevant Restricted Subsidiaries;
(8) the existence of, or the performance by Parent or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders or investors rights 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 that it may enter into thereafter; provided, however, that the existence of, or the performance by Parent 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 (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the holders of the Notes in any material respect as determined in good faith by the Board of Directors of Parent;
(9) the Refinancing Transactions and the payment of all fees and expenses in connection therewith;
(10) any contribution of capital to Parent and transactions with an Affiliate where the only consideration paid is Capital Interests of the Parent;
(11) transactions permitted by, and complying with, Section 5.1;
(12) transactions with any joint venture;
(13) transactions with Affiliates solely in their capacity as holders of Debt or Capital Interests of Parent 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;
(14) the entering into of any tax sharing, allocation or similar agreement and any payments by Parent (or any other direct or indirect parent of Parent) or any of the Restricted Subsidiaries pursuant to any tax sharing, allocation or similar agreement; provided that the amount of such payments for any taxable year shall not exceed the amount permitted under clause (xi)(a) of the second paragraph of Section 4.7;
(15) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms which that are no less favorable to the Company Parent or such Restricted Subsidiary, as the case may be, as determined in good faith by Parent, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of Parent, and pledges of the Capital Interests of Unrestricted Subsidiaries;
(216) if transactions effected as part of a Qualified Receivables Transaction;
(17) any agreement between any Person and an Affiliate of such Affiliate Transaction Person existing at the time such Person is acquired by or series merged or consolidated with or into Parent 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 contemplation of related Affiliate Transactions involves aggregate payments such acquisition, merger or other consideration having consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a Fair Market Value in excess of $5.0 millionwhole, such Affiliate Transaction is in writing and a majority not more disadvantageous to the holders of the disinterested members of Notes in any material respect, than the Board of Directors of applicable agreement as in effect on the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms date of such Affiliate Transaction are fairacquisition, merger or consolidation;
(18) transactions between Parent and/or any of its Restricted Subsidiaries and any Person or director of which is also a director of Parent or any direct or indirect parent of its company so long as such director abstains from voting as a financial point director of view, to the Company Parent as such direct or the Restricted Subsidiary involved in such Affiliate Transactionindirect parent, as the case may be, on any matter involving such other Person; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(119) transactions with or among the Company and any Restricted a Person (other than an Unrestricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the CompanyIssuer) that is an Affiliate of the Issuer solely because the Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in, or other paymentscontrols, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectPerson.
Appears in 1 contract
Sources: Indenture (Ryerson Holding Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that could reasonably be expected to have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Issuer must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Issuer or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitations do not limit, and shall not apply to:
(a) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2b) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or reasonable and customary compensation and indemnities and other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested benefits to members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received Issuer or a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; andwho are outside directors;
(3c) if such Affiliate Transaction the payment of reasonable and customary compensation (including awards or series grants in cash or securities and other payments) and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of related Affiliate Transactions involves aggregate payments the Issuer or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the any Restricted Subsidiary involved as determined by the Board of Directors thereof in such Affiliate Transaction, as the case may be.good faith;
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1d) transactions with between or among the Company and any Restricted Subsidiary or between or among Issuer and/or its Restricted Subsidiaries;
(2e) any Permitted Investment agreement or arrangement as in effect on the Issue Date or on the Escrow Release Date and any Restricted Payment amendment or other payment modification thereto so long as such amendment or Investment permitted modification is not more disadvantageous to be made pursuant to Section 4.09the Holders of the Notes in any material respect;
(3f) any issuance contribution of Qualified Capital Stock of capital to the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of businessIssuer;
(4g) advances to officerstransactions permitted by, directorsand complying with, employees and consultants who are not otherwise Affiliates Section 5.1 hereof;
(h) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(i) transactions with customers, clients, suppliers or purchasers or sellers of the Company made goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, as determined in good faith by the Issuer, than those that could reasonably be expected to be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of the Issuer;
(j) transactions effected as part of a Qualified Receivables Transaction;
(k) loans (or Guarantees of third-party loans) and advances to officers, directors and employees of the Issuer and Subsidiaries in an aggregate amount not to exceed $1.0 10.0 million in at any calendar yearone time outstanding for travel, entertainment, relocation and analogous ordinary business purposes;
(5l) the payment issuance or sale of reasonable 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 Capital Interests (other than Redeemable Capital Interests) of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessIssuer; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on m) the Issue Date (or on Transactions and the Closing Date payment of fees and entered into expenses in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: Indenture (Schulman a Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries or Unrestricted Subsidiary Guarantors to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”)") involving aggregate payments or consideration in excess of $1.0 million, unless:
(1) such that Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable advantageous to the Company or such Restricted Subsidiary, as the case may be, that Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or that Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such a Board Resolution set forth in an Officers' Certificate certifying that the relevant Affiliate Transaction is in writing complies with clause (1) above and that the Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, Directors; or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves (other than sales of Equity Interests) involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 10.0 million, such an opinion as to the fairness to the holders of that Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) investment banking firm of national standing. Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 following items shall not apply tobe deemed to be Affiliate Transactions:
(1) transactions with customary directors' fees and expenses, indemnification or among the Company and similar arrangements or any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment employment agreement or other payment compensation plan or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of arrangement entered into by the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit any of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted Subsidiaries or any other Guarantor;
(3) payments of customary fees by the Company or any of its Restricted Subsidiaries to investment banking firms, financial consultants and financial advisors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures that are approved by a majority of the Board of Directors in good faith;
(4) advances any agreement as in effect on the date of this Indenture or any amendment thereto (so long as that amendment is not disadvantageous to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million Noteholders in any calendar yearmaterial respect) or any transaction contemplated thereby;
(5) payments and transactions in connection with the Credit Facility (including commitment, syndication and arrangement fees payable thereunder) and this Indenture (including underwriting discounts and commissions in connection therewith) and the application of the proceeds thereof, and the payment of reasonable directors’ fees, indemnification the fees and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements expenses with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)respect thereto;
(6) issuances payments under any tax-sharing agreement or arrangement among the Company and sales of Qualified Capital Stock other members of the affiliated group of corporations of which the Company or is the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)common parent;
(7) a provision the issuance or purchase sale of goods Capital Stock (other than Disqualified Capital Stock) otherwise permitted hereunder;
(8) contracts between the Company and/or any of its Restricted Subsidiaries and any Unrestricted Subsidiary Guarantor with respect to any management services or administrative services in provided by the ordinary course Company and/or any of businessits Restricted Subsidiaries and any Unrestricted Subsidiary Guarantor;
(9) Restricted Payments that are not prohibited by this Indenture and any Permitted Investments; and
(8) any 10) transactions undertaken pursuant to any contractual obligations permitted by the provisions described in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectSection 5.01 herein.
Appears in 1 contract
Sources: Indenture (Etesting Labs Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”), unless:
(1a) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Borrower or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Borrower or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2b) if such the Borrower delivers to the Administrative Agent:
(i) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, a resolution of the Board of Directors of the Borrower set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with this Section 7.05 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beBorrower; and
(3ii) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 25.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that as to the terms fairness to the Lenders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in prior paragraph of this Section 4.13 shall not apply to7.05:
(1) transactions with any employment equity award, equity option or among equity appreciation agreement or plan entered into by the Company and Borrower or any of its Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Borrower and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Borrower solely because the Borrower owns an Equity Interest in such Person;
(4) advances customary compensation, indemnification and other benefits made available to officers, directors or employees of the Borrower or a Restricted Subsidiary or Affiliate of the Borrower, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors, employees and consultants who are not otherwise ’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company made Borrower;
(6) Restricted Payments that are permitted by Section 7.01;
(7) transactions effected in accordance with the terms of the Administrative and Operating Services Agreement, as such agreement is in effect on the date of this Agreement, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Borrower in any material respect than the agreement so amended or extended;
(8) the purchase by the Borrower or any of its Restricted Subsidiaries of natural gas from J▇▇▇ ▇. ▇▇▇▇▇, ▇▇., or any of his Affiliates and any related transactions, or the gathering or compressing of any natural gas by the Borrower or any of its Restricted Subsidiaries for the account of J▇▇▇ ▇. ▇▇▇▇▇, ▇▇. or any of his Affiliates and any related transactions, in each case in the ordinary course of business;
(9) the guarantee by ScissorTail of the performance by Southern Dome of its obligations under the New Dominion Gas Purchase Agreement, as such agreement is in effect on the date of this Agreement, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Borrower in any material respect than the agreement so amended or extended;
(10) transactions effected in accordance with the terms of the Management Agreement dated as of August 1, 2005 between Southern Dome and ScissorTail, as such agreement is in effect on the date of this Agreement, and any amendment or extension of such agreement so long as such amendment or extension agreement is no less advantageous to the Borrower in any material respect than the agreement so amended or extended; and
(11) the transportation of natural gas across the gathering systems of W▇▇▇/D▇▇▇▇ Gatherers and its Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements consistent with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectpast practices.
Appears in 1 contract
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company must obtain a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the holders of the Notes in any material respect;
(6) the Transactions described in the Offering Memorandum and the payment of all fees and expenses in connection therewith;
(7) any contribution of capital to the Company;
(8) transactions permitted by, and complying with, Section 5.1;
(9) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(10) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(111) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Rock-Tenn CO)
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 make any payment to, directly or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”)") involving aggregate payments or consideration in excess of $5.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2ii) if such the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, such Affiliate Transaction is in writing and a resolution adopted by the majority of the disinterested members of the Board of Directors of the Company shall have approved approving such Affiliate Transaction and determined set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above.
(b) The foregoing provisions will not apply to the foregoing provisionsfollowing: (i) transactions between or among the Company and/or any of its Restricted Subsidiaries; (ii) Restricted Payments permitted by Section 1009; (iii) the payment of customary annual management, orconsulting and advisory fees and related expenses to KKR and its Affiliates; (iv) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary; (v) payments by the Company or any of its Restricted Subsidiaries to KKR and its Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the event that there are no disinterested directorsBoard of Directors of the Company in good faith; (vi) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee has received a written opinion letter from an Independent Financial Advisor stating that such transaction is fair to the terms of Company or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of viewview or meets the requirements of clause (i) of paragraph (a); (vii) payments or loans to employees or consultants which are approved by a majority of the Board of Directors of the Company in good faith; (viii) any agreement as in effect as of the Issuance Date or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect) or any transaction contemplated thereby; (ix) the existence of, to or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issuance 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 Restricted Subsidiary involved in Subsidiaries of obligations under any future amendment to any such Affiliate Transaction, as existing agreement or under any similar agreement entered into after the case may be; and
Issuance Date shall only be permitted by this clause (3ix) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and to the Trustee has received a written opinion from an Independent Financial Advisor stating extent that the terms of any such Affiliate Transaction amendment or new agreement are fair, from a financial point of view, not otherwise disadvantageous to the Company or Holders in any material respect; (x) the Restricted Subsidiary involved in such Affiliate Transaction, as Recapitalization and the case may be.
Financings and the payment of all fees and expenses related to the Recapitalization and the Financings; and (b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1xi) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Companycustomers, clients, suppliers, or other paymentspurchasers or sellers of goods or services, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made each case in the ordinary course of business and otherwise in an amount not compliance with the terms of the Indenture which are fair to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 its Restricted Subsidiary entered into Subsidiaries, in the ordinary course reasonable determination of business (including reasonable benefits thereunder);
(6) issuances and sales the Board of Qualified Capital Stock Directors of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectan unaffiliated party.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall AirGate will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to AirGate or the Company or such relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by AirGate or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such AirGate delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 1.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Directors; provided, however, AirGate need not deliver such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, Officers' Certificate to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, with respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves that involve (i) aggregate payments or other consideration having a Fair Market Value not in excess of $15.0 5.0 million and (ii) an Affiliate that (x) engages in a related telecommunication services business, (y) bids on, owns or leases spectrum or (z) provides management, billing or customer care services; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1) any employment agreement, including payments made thereunder in securities or cash, entered into by AirGate or any of its Restricted Subsidiaries in the ordinary course of business of AirGate or such Restricted Subsidiary;
(2) transactions with or among the Company and any Restricted Subsidiary or between or among AirGate and/or its Restricted Subsidiaries;
(23) any Permitted Investment payment of reasonable directors' fees, expenses and any Restricted Payment or other indemnification (whether such payment or Investment permitted to be is made pursuant to Section 4.09;
(3AirGate's charter or by-laws or a written agreement with any director or officer) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company and made in the ordinary course of businessAirGate;
(4) advances to officers, directors, employees and consultants who Restricted Payments that are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;permitted by Section 4.7; and
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)Equity Interests, as the same may be amendedother than Disqualified Stock, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectgrant of registration rights with respect thereto, to Affiliates of AirGate.
Appears in 1 contract
Sources: Indenture (Airgate PCS Inc /De/)
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, 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 of any assets or the rendering of any serviceservices) with or for the benefit of any of their respective Affiliates Affiliate (each, 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:
(1) such Affiliate Transaction, taken as a whole, Transaction is on between or among Parent and one or more of the Restricted Subsidiaries; or
(2) the terms which of such Affiliate Transaction are no less favorable fair and reasonable to the Company Parent or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, at least as favorable as the terms which could reasonably by expected to the Company be obtained by Parent or the such Restricted Subsidiary involved in such Affiliate TransactionSubsidiary, as the case may be; and
(3) if such , in a comparable transaction made on an arm’s-length basis between unaffiliated parties. In any Affiliate Transaction (or any series of related Affiliate Transactions involves aggregate payments which are similar or other consideration part of a common plan) involving an amount or having a Fair Market Value fair market value in excess of $15.0 million15 million which is not permitted under clause (1) above, Parent must obtain a Board Resolution of the Board of Directors of Parent certifying that such Affiliate Transaction complies with clause (2) above. 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 $25 million which is in writing and the Trustee has received not permitted under clause (1) above, Parent must obtain a favorable written opinion from an Independent Financial Advisor stating that as to the terms fairness of such Affiliate Transaction are fair, from a financial point of view, to the Company transaction or the Restricted Subsidiary involved in such Affiliate Transactiontransactions, as the case may be, from an Independent Financial Advisor.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall 4.16(a) will not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary Payment that is not prohibited by the provisions described under Section 4.11 or between or among Restricted Subsidiariesany Permitted Investment;
(2) any Permitted Investment reasonable fees and compensation (including equity compensation) paid to, and indemnity provided on behalf of, officers, directors or employees of Parent or any Restricted Payment Subsidiary as determined in good faith by Parent’s Board of Directors or other payment or Investment permitted to be made pursuant to Section 4.09senior management;
(3) any issuance of Qualified Capital Stock agreement as in effect as of the CompanyIssue Date (including, without limitation, the shareholders agreement among Parent, Metro Inc., and Developpements Orano Inc.) or other payments, awards any amendment thereto or grants in cash, Qualified Capital Stock of the Company or otherwise, any transaction contemplated thereby (including pursuant to employment arrangements any amendment thereto) in any replacement agreement thereto so long as any such amendment or stock option plans for replacement agreement is not more disadvantageous to the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of Holders in any material respect than the Company and made original agreement as in effect on the ordinary course of business;Issue Date; and
(4) advances to officers, directors, employees the issuance and consultants who are not otherwise Affiliates sale of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7other than Disqualified Capital Stock) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectby Parent.
Appears in 1 contract
Sources: Indenture (3055854 Nova Scotia Co)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably be expected to have been obtained in a comparable arm’s-length transaction by the Company or such Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Company delivers to the Trustee a resolution (for informational purposes only and the Trustee shall not be obligated to review or evaluate such resolution) adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitations do not limit, and shall not apply to:
(a) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Permitted Investments permitted under this Indenture;
(b) the payment of reasonable and customary compensation and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(c) the payment of reasonable and customary compensation (including awards or grants in cash or securities and other payments) and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(d) transactions between or among the Company and/or its Restricted Subsidiaries;
(e) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(f) any contribution of capital to the Company;
(g) transactions permitted by, and complying with, Section 5.1 hereof;
(h) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(i) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could reasonably be available expected to be obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;Affiliate of the Company;
(2j) if such Affiliate Transaction or series transactions effected as part of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; andPermitted Receivables Facility;
(3k) if such Affiliate Transaction loans (or series Guarantees of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing third-party loans) and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, advances to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, directors and consultants who are not otherwise Affiliates employees of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and Subsidiaries in an aggregate amount not to exceed $1.0 10.0 million in at any calendar year;
(5) the payment of reasonable directors’ feesone time outstanding for travel, indemnification entertainment, relocation 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 Subsidiary entered into in the analogous ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; purposes; and
(8) l) the issuance or sale of any transactions undertaken pursuant to any contractual obligations in existence on Capital Interests (other than Disqualified Capital Interests) of the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectCompany.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”), unless:
(1a) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, taken as the case may bea whole, than those that would be available have been obtained in a comparable transaction on an arm’s-length basis transaction by the Company or such Restricted Subsidiary with a Person that is not an unaffiliated third party;Affiliate; and
(2b) if the Company delivers to the Trustee prior to entering into such Affiliate Transaction:
(i) with respect of any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 U.S.$10.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined an Officer’s Certificate stating that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may bethis covenant; and
(3ii) if such with respect of any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 U.S.$25.0 million, an opinion as to the fairness to the Company or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an independent international investment banking, auditing, valuation or consulting firm of recognized standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1i) transactions with between or among the Company and any Restricted Subsidiary or between two or among more Restricted Subsidiaries;
(2ii) any Permitted Investment the payment of reasonable and any Restricted Payment or other payment or Investment permitted customary regular fees to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock directors of the Company, or other payments, awards or grants in cash, Qualified Capital Stock Company who are not employees of the Company or otherwise, its Restricted Subsidiaries;
(iii) transactions or payments (including loans and advances) pursuant to employment an employee, officer or director compensation or benefit plan, customary indemnifications or arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made entered into in the ordinary course of business, on market terms and consistent with past practice or industry norms;
(4iv) advances any agreement in effect as of the Issue Date or any amendment, supplement, restatement, replacement, renewal, extension, refinancing thereof or thereto (so long as the renewed or replaced agreement, when taken as a whole, is not materially more disadvantageous to officers, directors, employees and consultants who are not otherwise Affiliates the Holders than such original agreement in effect on the Issue Date) or any transaction contemplated thereby;
(v) any issuance or sale of Capital Stock of the Company made (other than Disqualified Stock);
(vi) Permitted Investments and Restricted Payments that are permitted by the provisions of the covenant described under Section 4.04;
(vii) the provision of administrative services to any joint venture or Unrestricted Subsidiary on substantially the same terms provided to or by Restricted Subsidiaries;
(viii) any Sale and Leaseback Transaction otherwise permitted under the caption Section 4.10 if such transaction is on market terms; and
(ix) (A) transactions with customers, clients, distributors, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
on market terms, or (5B) the payment of reasonable directors’ fees, indemnification and transactions with joint ventures or other 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances business, on market terms and sales of Qualified Capital Stock of the Company consistent with past practice or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectindustry norms.
Appears in 1 contract
Sources: Indenture (Adecoagro S.A.)
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 make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 2.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be(if any); and
(3B) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 10.0 million, an opinion as to the fairness to the Company or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in provisions of clause (a) of this Section 4.13 shall not apply to4.14:
(1) transactions with between or among the Company and and/or its Restricted Subsidiaries or any Person that will become a Restricted Subsidiary or between or among Restricted Subsidiariesas part of any such transactions;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted of reasonable directors fees to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company and made in customary indemnification agreements with directors and officers of the ordinary course of businessCompany and its Restricted Subsidiaries;
(3) Restricted Payments that are permitted by Section 4.07;
(4) advances transactions or payments pursuant to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit plans or 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 and approved by the Board of Directors;
(including reasonable benefits thereunder)5) 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 through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(6) issuances and sales the issuance of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of the Company to Holdings or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Principal;
(7) a provision the payments of all fees and expenses related to the Merger described in the Offering Memorandum under "The Transactions" and "Certain Relationships and Related Transactions";
(8) transactions with customers, clients, suppliers or purchase purchasers or sellers of goods or services services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture that are on terms no less favorable than those that would have been obtained in a comparable transaction with an unrelated party or on terms that are approved by the Company's Board of Directors, including a majority of the disinterested directors;
(9) transactions entered into as part of a Permitted Receivables Financing;
(10) payments by the Company or any of its Restricted Subsidiaries to the Principals made for any financial advisory or consulting services in an aggregate amount (including payments (excluding annual management fees) made pursuant to any contract in effect on the date of this Indenture, including the ▇▇▇▇ Advisory Agreement) not to exceed $2.0 million in any twelve-month period, which payments are approved in good faith by the Board of Directors; and
(8) any 11) transactions undertaken pursuant to any contractual obligations contract or agreement in existence effect on the Issue Date (or on the Closing Date and entered into date of this Indenture, in connection with the Transactions), each case as the same may be amended, modified or replaced from time to time so long as such amendmentthe amended, modification modified or replacement is new agreements, taken as a whole, are no less favorable to the Company and the its Restricted Subsidiaries than those in any material respecteffect on the date of this Indenture.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any such Person (each of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”"), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person; and
(ii) the Parent delivers to the Trustee (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.5 million, a resolution of its Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause(i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of its Board of Directors and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an appraisal, accounting or investment banking firm of national standing.
(b) The following shall not be deemed to be Affiliate Transactions:
(i) any employment agreement entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Parent or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2ii) if such Affiliate Transaction transactions between or series of related Affiliate Transactions involves aggregate payments among the Parent and/or its Restricted Subsidiaries;
(iii) any sale or other consideration having a Fair Market Value in excess issuance of $5.0 million, such Affiliate Transaction is in writing and a majority Equity Interests (other than Disqualified Stock) of the disinterested Parent;
(iv) Restricted Payments that are permitted by Section 4.3;
(v) fees and compensation paid to, and indemnity provided on behalf of, members of the Board of Directors Directors, officers or employees of the Company shall have approved such Affiliate Transaction Parent and determined that such Affiliate Transaction complies with the foregoing provisions, or, of its Restricted Subsidiaries in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of viewtheir capacity as such, to the Company or the Restricted Subsidiary involved in extent such Affiliate Transactionfees and compensation are reasonable, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing customary and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions consistent with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiariespast practices;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4vi) advances to officersemployees for moving, directorsentertainment and travel expenses, employees drawing accounts and consultants who are not otherwise Affiliates of the Company made similar expenditures in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearconsistent with past practices;
(5vii) the payment of reasonable directors’ fees, indemnification and similar arrangementsannual management, consulting feesand advisory fees and related expenses to Berkshire, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee which payments are approved by the Board of Directors of the Company or any Restricted Subsidiary entered into Parent in the ordinary course of business (including reasonable benefits thereunder)good faith;
(6viii) issuances and sales of Qualified Capital Stock transactions between the Parent or a Restricted Subsidiary of the Company or the receipt Parent and an Unrestricted Subsidiary of the proceeds of capital contributions Parent in respect of Qualified Capital Stock good faith as long as (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7A) a provision or purchase of goods or services such transactions are on terms that are otherwise in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection compliance with the Transactions), as terms of the same may be amended, modified or replaced from time to time so long as Indenture and (B) such amendment, modification or replacement is transactions are on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person;
(ix) the exchange (whether initiated at the option of the Parent or the holder of the PIK Preferred Member Interest) or the redemption (by the Parent subject to the terms of this Indenture) of the outstanding PIK Preferred Member Interest for Exchange Notes and Exchange Guarantees pursuant to clause (vi) of Section 4.3(b); and
(x) transactions pursuant to the Restricted Subsidiaries in any material respectTransaction Documents.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend or conduct into any transaction or series of related transactions (including including, without limitation, the purchase, sale, lease or exchange of any assets property or the rendering of any service) with with, or for the benefit of of, any of their respective its Affiliates (each, each an “Affiliate Transaction”), unless:
(1) the terms of such Affiliate Transaction, taken as a whole, is on terms which Transaction are no less favorable than those that could reasonably be expected to the Company or such Restricted Subsidiary, as the case may be, than would be available obtained in a comparable transaction at such time on an arm’s-length basis with from a Person that is not an unaffiliated third partyAffiliate of the Company;
(2) if in the event that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments payments, or other consideration having transfers of property or services with a Fair Market Value Value, in excess of $5.0 US$5 million, the terms of such Affiliate Transaction is in writing and will be approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and (including a majority of the independent members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such Affiliate Transaction transaction complies with the foregoing preceding provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if in the event that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments payments, or other consideration having transfers of property or services with a Fair Market Value Value, in excess of $15.0 US$25 million, the Company will, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction is in writing to the Company and the Trustee has received relevant Restricted Subsidiary (if any) from a written opinion financial point of view from an Independent Financial Advisor stating that and file the terms of such Affiliate Transaction are fair, from a financial point of view, to same with the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beTrustee.
(b) Notwithstanding the foregoing, the restrictions set forth in this The provisions of Section 4.13 shall 3.17(a) above will not apply to:
(1) transactions Affiliate Transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment reasonable fees and compensation paid to, and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employeesindemnity provided on behalf of, officers, directors, and employees, consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 agents of the Company or any Restricted Subsidiary entered into as determined in good faith by the ordinary course Company’s Board of business (including reasonable benefits thereunder)Directors;
(63) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions 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 (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable 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);
(4) any Restricted Payments made in compliance with Section 3.11 or any Permitted Investments;
(5) 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 not exceeding US$2.5 million outstanding at any one time; and
(6) any issuance of Capital Stock (other than Disqualified Stock) of the Company to Affiliates of the Company or to any director, officer, employee or consultant of the Company, and the Restricted Subsidiaries in any material respectgranting and performance of registration rights.
Appears in 1 contract
Sources: Indenture (Homex Development Corp.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct make any business 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, renewmake, amend amend, renew or conduct extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $10 million, unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on fair and reasonable terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis transaction by the Company or such Restricted Subsidiary with a Person that is not an unaffiliated third party;Affiliate of the Company or any Restricted Subsidiary; and
(2) if 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 million, a Board Resolution attached to an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event this covenant and that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves has been approved by a majority of the Disinterested Members; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million150 million or 3% of Consolidated Total Assets, an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such Affiliate Transaction or series of related Affiliate Transactions is in writing and fair to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of Company or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.. Table of Contents
(b) Notwithstanding The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to:4.05(a):
(1) transactions with between or among the Company and any Restricted Subsidiary or between or among its Restricted Subsidiaries;
(2) any Restricted Payments that are permitted under Section 4.04 and Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Investments;
(3) any issuance or sale of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations agreements or arrangements in existence effect on the Issue Date (and described in the Offering Memorandum, or on the Closing Date and entered into in connection with the Transactions)any amendment, modification, or supplement thereto or renewal or replacement thereof, as the same may be amended, modified or replaced from time to time so long as such amendmentagreement or arrangement, modification as so amended, modified, supplemented, renewed or replacement replaced, taken as a whole, is no less favorable not materially more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date as determined by the Disinterested Members of the Board of Directors of the Company evidenced by a Board Resolution;
(5) payments by the Company (and any direct or indirect parent thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent) and its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries; provided that in each case the amount of such payments in any material respectfiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(6) payment of reasonable and customary fees to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Company or any Subsidiary thereof; and
(7) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any Restricted Subsidiary with officers and employees of the Company or any Subsidiary thereof and the payment of compensation to officers and employees of the Company or any Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment have been approved by a majority of the Disinterested Members.
Appears in 1 contract
Sources: Indenture (Zayo Group LLC)
Limitation on Transactions with Affiliates. (a) The Company shall AirGate will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to AirGate or the Company or such relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by AirGate or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such AirGate delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 1.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved Directors; provided, however, AirGate need not deliver such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, Officers' Certificate to the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, with respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves that involve (i) aggregate payments or other consideration having a Fair Market Value not in excess of $15.0 5.0 million and (ii) an Affiliate that (x) engages in a related telecommunication services business, (y) bids on, owns or leases spectrum or (z) provides management, billing or customer care services; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1) transactions with any employment agreement, including payments made thereunder in securities or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock entered into by AirGate or any of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made its Restricted Subsidiaries in the ordinary course of business of AirGate or such Restricted Subsidiary;
(2) transactions between or among AirGate and/or its Restricted Subsidiaries;
(3) payment of reasonable directors' fees, expenses and in an amount not indemnification (whether such payment is made pursuant to exceed $1.0 million in AirGate's charter or by-laws or a written agreement with any calendar yeardirector or officer);
(4) Restricted Payments that are permitted by Section 4.7; and
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)Equity Interests, as the same may be amendedother than Disqualified Stock, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectgrant of registration rights with respect thereto, to Affiliates of AirGate.
Appears in 1 contract
Sources: Indenture (Airgate PCS Inc /De/)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment, modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect, including, without limitation, transactions with Triumph Receivables, LLC in connection with the Existing Receivables Facility;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, Section 5.1;
(8) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, ; and (10) transactions effected as part of a Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Triumph Group Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions arrangement (including the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any Affiliate of the Company or any Restricted Subsidiary, for the benefit consideration in excess of any of their respective Affiliates $10.0 million (each, an a “Affiliate Related Party Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, is on except upon fair and reasonable terms which are no not materially less favorable to the Company or the Restricted Subsidiary than could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company.
(b) Any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $20.0 million must first be approved by a majority of the Board of Directors who are disinterested in the subject matter of the transaction pursuant to a Board Resolution delivered to the Trustee. Prior to entering into any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $50.0 million, the Company must in addition obtain and deliver to the Trustee 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.
(c) The foregoing paragraphs do not apply to
(1) 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 compensation paid to, or loans made to, and indemnities and other benefits provided to officers, directors, employees or consultants of the Company or any Subsidiary, as determined by the Company in good faith;
(3) any Restricted Payments and Permitted Investments (other than Permitted Investments referred to in clause (4) thereof) if permitted by the Indenture;
(4) any transaction with a joint venture, partnership, limited liability company or other entity that constitutes an Affiliate solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(5) sales or leases of goods, or providing or receiving services, to or from joint ventures and Affiliates (but excluding any officers or directors) in the ordinary course of business for less than fair market value but not for less than cost;
(6) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions with joint ventures, in each case on terms that are not materially less favorable to the Company or any of its Restricted SubsidiarySubsidiaries, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) contributions to the equity capital of the Company or a provision Restricted Subsidiary or purchase sales of goods Qualified Equity Interests of the Company or services in the ordinary course of business; anda Guarantor;
(8) any transactions undertaken or arrangements pursuant to (a) any contractual obligations agreements in existence effect on the Issue Date Date, (b) Interim Ordinary Course Transactions at any time prior to the Spin-Off Date, or on the Closing Date and (c) any agreements to be entered into in connection with the Transactions, and, in the case of agreements referred to in clauses (a) and (c), as the same such agreements may be amended, modified or replaced from time to time so long as such amendmentthe amended, modification modified or replacement is no new agreements, taken as a whole, are not materially less favorable to the Company and holders of the Restricted Subsidiaries Notes than those in any material respecteffect on the Issue Date in the case of clause (a) or those described in the Offering Circular in the case of clause (c).
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to sell, lease, transfer or otherwise dispose of any of its properties or assets to, directly or indirectlypurchase any property or assets from, conduct any business or enter intointo or make any contract, renewagreement, amend understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
or any series of related Affiliate Transactions, unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, relevant Subsidiary than would be available those that could have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such the Company delivers to the Trustee (a) with respect to an Affiliate Transaction Transaction, or any series of related Affiliate Transactions involves Transactions, involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 2.5 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and (b) with respect to an Affiliate Transaction, or any series of related Affiliate Transactions, involving aggregate consideration in excess of $5.0 million, an opinion as to the fairness to the Company shall have approved or such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an investment banking firm of national standing; PROVIDED that the following shall not be deemed to be Affiliate Transactions: (w) transactions or payments pursuant to any employment arrangements, to director or officer indemnification agreements or employee or director benefit plans entered into by the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series any of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made its Subsidiaries in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of 42 business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 such Subsidiary, (x) transactions between or among the Company and/or any Restricted Subsidiary of its Subsidiaries, (y) any transaction or series of related transactions pursuant to terms entered into in prior to the ordinary course date of business this Indenture and (including reasonable benefits thereunder);
(6z) issuances Restricted Payments by the Company which are permitted by Section 4.3 and sales of Qualified Capital Stock are made on a PRO RATA basis to each stockholder of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectCompany.
Appears in 1 contract
Sources: Indenture (Sun Healthcare Group Inc)
Limitation on Transactions with Affiliates. (a) The Company VHS Holdco II shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1) such the Affiliate TransactionTransaction is on terms that are not materially less favorable, taken as a whole, is on terms which are no less favorable to VHS Holdco II or the Company or such relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction by VHS Holdco II or such Restricted Subsidiary with an unrelated Person on an arm’s-arms length basis with an unaffiliated third party;basis; and
(2) if such VHS Holdco II delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 20.0 million, a resolution of the Board of Directors of VHS Holdco II set forth in an Officers’ Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members, if any, of the Board of Directors of VHS Holdco II.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.09(a) hereof:
(1) transactions between or among VHS Holdco II and/or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction;
(2) Restricted Payments and Permitted Investments permitted by this Indenture;
(3) the payment to Sponsors of annual management, consulting, monitoring and advisory fees in an aggregate amount in any fiscal year not in excess of the greater of (A) $6.0 million and (B) 2.0% of EBITDA of VHS Holdco II and its Restricted Subsidiaries for the immediately preceding fiscal year, plus reasonable out-of-pocket costs and expenses in connection therewith and unpaid amounts accrued for prior periods (but after the Issue Date), and the execution of any management or monitoring agreement subject to the same limitations;
(4) the payment of reasonable and customary fees paid to, and indemnities provided on behalf of, officers, directors, employees or consultants of VHS Holdco II, any Restricted Subsidiary or (to the extent such person renders services to the businesses of VHS Holdco II and its Subsidiaries) any of VHS Holdco II’s direct or indirect parent entities;
(5) payments by VHS Holdco II or any Restricted Subsidiary to the Sponsors and any of their Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, VHS Holdco II in the event that there are no disinterested directors, good faith;
(6) transactions in which VHS Holdco II or any Restricted Subsidiary delivers to the Trustee has received a written opinion letter from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, transaction is fair to VHS Holdco II or such Restricted Subsidiary from a financial point of view;
(7) payments or loans (or cancellations of loans) to employees or consultants of VHS Holdco II, any Restricted Subsidiary or (to the Company extent such person renders services to the businesses of VHS Holdco II and its Subsidiaries) any of VHS Holdco II’s direct or indirect parent entities, which are approved by a majority of the Board of Directors of VHS Holdco II in good faith and which are otherwise permitted under this Indenture;
(8) payments made or performance under any agreement as in effect on the Issue Date or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date);
(9) the existence of, or the performance by VHS Holdco II or any of its Restricted Subsidiary involved in such Affiliate TransactionSubsidiaries of its obligations under the terms of, as the case LLC Agreement (including any registration rights agreement or purchase agreements related thereto to which it is party on the Issue Date and any similar agreement that it may beenter into thereafter); and
provided that the existence of, or the performance by VHS Holdco II or any of its Restricted Subsidiaries of its obligations under any future amendment to the LLC Agreement or under any similar agreement or amendment thereto entered into after the Issue Date shall only be permitted by this clause (39) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and to the Trustee has received a written opinion from an Independent Financial Advisor stating extent that the terms of any such Affiliate Transaction amendment or new agreement are fairnot otherwise disadvantageous to Holders of the Notes in any material respect;
(10) transactions with customers, from a financial point clients, suppliers, or purchasers or sellers of viewgoods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company VHS Holdco II and or the Restricted Subsidiary involved Subsidiaries, in the reasonable determination of the members of the Board of Directors of VHS Holdco II or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such Affiliate Transaction, as the case may be.time from an unaffiliated party;
(b11) Notwithstanding the foregoingif otherwise permitted hereunder, the restrictions set forth in this Section 4.13 shall not apply to:issuance of Equity Interests (other than Disqualified Stock) of the Issuers to VHS Holdco I, to any direct or indirect parent of VHS Holdco I, or to any Permitted Holder;
(112) any transaction effected as part of a Qualified Securitization Financing;
(13) any transaction with a Captive Insurance Subsidiary in the ordinary course of operations of such Captive Insurance Subsidiary;
(14) payments or loans (or cancellation of loans) to employees or consultants of the Issuers, any of their direct or indirect parent companies or any of their Restricted Subsidiaries and any employment agreements entered into by VHS Holdco II or any of the Restricted Subsidiaries in the ordinary course of business;
(15) transactions with or among joint ventures in Permitted Businesses entered into in the Company ordinary course of business and any Restricted Subsidiary or between or among Restricted Subsidiariesin a manner consistent with past practice;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(316) any issuance of Qualified Capital Stock of the Companysecurities, or other payments, awards or grants in cash, Qualified Capital Stock of securities or otherwise pursuant to, or the Company or otherwisefunding of, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements stock options and incentive arrangements with any officer, director or employee stock ownership plans approved by the Board of the Company or any Restricted Subsidiary entered into in the ordinary course Directors of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessVHS Holdco II; and
(8) 17) Investments by any transactions undertaken pursuant to of the Sponsors in securities of the Issuers or any contractual obligations in existence on the Issue Date of their Restricted Subsidiaries (or on the Closing Date and entered into payment of reasonable out-of-pocket expenses incurred by such investors in connection with the Transactions), as the same may be amended, modified or replaced from time to time therewith) so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than 5% of the proposed or outstanding issue amount of such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectclass of securities.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall notNeither FelCor LP nor FelCor shall, and neither FelCor LP nor FelCor shall not cause or permit any of their respective Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions (including including, without limitations, the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any holder (or for the benefit any Affiliate of such holder) of 5% or more of any class of Capital Stock of FelCor LP or FelCor or with any Affiliate of FelCor LP or FelCor or any of their respective Affiliates Restricted Subsidiaries, except upon fair and reasonable terms no less favorable to FelCor LP, FelCor or such Restricted Subsidiary than could be 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 that is not such a holder or an Affiliate. The foregoing limitation shall not limit, and shall not apply to: (eachi) transactions (A) approved by a majority of the independent directors of FelCor or (B) for which FelCor LP, an “Affiliate Transaction”)FelCor or any Restricted Subsidiary delivers to the Trustee a written opinion of a nationally recognized investment banking firm stating that the transaction is fair to FelCor LP, unless:
FelCor or such Restricted Subsidiary from a financial point of view; (1ii) any transaction solely between FelCor LP or FelCor and any of their respective Wholly Owned Restricted Subsidiaries or solely between Wholly Owned Restricted Subsidiaries; (iii) the payment of reasonable and customary fees and expenses to directors of FelCor who are not employees of FelCor; (iv) any payments or other transactions pursuant to any tax sharing agreement between FelCor LP or FelCor and any other Person with which FelCor LP or FelCor files a consolidated tax return or with which FelCor LP or FelCor is part of a consolidated group for tax purposes; (v) any Restricted Payments not prohibited by Section 4.04; (vi) transactions pursuant to agreements or arrangements in effect on the Closing Date or any amendment, modification or supplement thereto or replacement thereof, as long as such Affiliate Transactionagreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more disadvantageous to FelCor, FelCor LP and their Restricted Subsidiaries than the original agreement or arrangement in existence on terms which the Closing Date; (vii) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by FelCor, FelCor LP or any of their Restricted Subsidiaries with officers and employees of FelCor or any of its Restricted Subsidiaries that are no less favorable Affiliates of FelCor or FelCor LP and the payment of compensation to the Company such officers and employees (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) so long as such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of agreement has been approved by the Board of Directors of FelCor; (viii) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of FelCor or any of its Restricted Subsidiaries; (ix) any transaction with any Person that is not an Affiliate immediately before the Company shall have approved consummation of such transaction that becomes an Affiliate as a result of such transaction; or (x) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisionssolely because FelCor LP, or, in the event that there are no disinterested directors, the Trustee has received FelCor or a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved owns an equity interest in such Affiliate Transactionjoint venture, as partnership, limited liability company or other entity. Notwithstanding the case may be; and
(3) if such Affiliate Transaction foregoing, any transaction or series of related Affiliate Transactions involves transactions covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (x) of this paragraph, (a) the aggregate payments amount of which exceeds $5 million in value, must be approved or other consideration having a Fair Market Value determined to be fair in excess of $15.0 millionthe manner provided for in clause (i)(A) or (B) above, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoingaggregate amount of which exceeds $10 million in value, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted must be determined to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made fair in the ordinary course of business;
manner provided for in clause (4i)(B) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectabove.
Appears in 1 contract
Sources: Indenture (FelCor Lodging Trust Inc)
Limitation on Transactions with Affiliates. (a) The Neither the Parent nor the Company shall notshall, and they shall not cause or permit any of their Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend or conduct into any transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets property, employee compensation arrangements or the rendering of any service) involving aggregate consideration in excess of (a) in the case of any transactions involving Key Collateral, U.S.$5,000,000, or (b) otherwise, U.S.$15,000,000, in each case with or for the benefit of any Affiliate of the Parent (other than the Parent, the Company or their respective Affiliates Restricted Subsidiaries) (each, an “Affiliate Transaction”), unless:
unless (1i) such Affiliate Transaction is a Permitted Affiliate Transaction; provided, taken however, that such Affiliate Transaction does not involve Key Collateral; or (ii) the terms of the Affiliate Transaction are substantially as a whole, is on terms which are no less favorable to the Parent, the Company or such Restricted SubsidiarySubsidiary as those that could be obtained at the time of the Affiliate Transaction in arm’s length dealings with a Person who is not an Affiliate, as and the case may beCompany delivers to the Trustee (x) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration more than U.S.$30,000,000, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments complies with this Section 4.09(b) and has been approved by the board of directors (or other equivalent governing body) of the Parent, the Company or such Restricted Subsidiary, and (y) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration having a Fair Market Value in excess of $5.0 millionU.S.$50,000,000, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined an Officers’ Certificate certifying that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments complies with this Section 4.09(b) in the opinion of an Approved Appraisal Firm, as evidenced by a written report or other consideration having a Fair Market Value in excess opinion attached to such Officers’ Certificate. For the avoidance of $15.0 milliondoubt, such with respect to any Affiliate Transaction involving the transfer of Key Collateral from the Issuer or a Guarantor to any Person that is not a Guarantor (and that does not become a Guarantor in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that accordance with the terms of this Indenture), the Net Proceeds of such Affiliate Transaction are fairshall be applied in accordance with Section 4.22, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beif applicable.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: Indenture (GOL Linhas Aereas S.A.)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate involving aggregate consideration in excess of any of their respective Affiliates $5.0 million on or after the Issue Date (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Issuer or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Issuer or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction is complies with this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in writing and excess of $25.0 million, an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any consulting or employment agreement or arrangement entered into by the Issuer or any of its Restricted Subsidiaries approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted SubsidiariesIssuer;
(2) any Permitted Investment transactions (i) between or among the Issuer and/or the Guarantors, (ii) between or among Restricted Subsidiaries that are not Guarantors; and any Restricted Payment (iii) between or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of among the CompanyIssuer and the Guarantors, or other payments, awards or grants in cash, Qualified Capital Stock of on the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directorsone hand, and consultants who Restricted Subsidiaries that are not otherwise Affiliates of Guarantors, on the Company and made other hand, in the ordinary course of business;
(3) payment of reasonable directors fees to directors of the Issuer and any Parent and the provision of customary indemnities to directors, officers, employees or consultants of the Issuer, and any Parent or any Restricted Subsidiary;
(4) advances issuances and sales of Equity Interests (other than Disqualified Stock) to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Issuer;
(5) any tax sharing agreement or arrangement and payments pursuant thereto among the Issuer and its Subsidiaries and any other Person with which the Issuer or its Subsidiaries is required or permitted to file a consolidated, combined or unitary tax return or with which the Issuer or any of its Restricted Subsidiaries is or could be part of a consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited by this Indenture;
(6) Restricted Payments that are permitted by Section 4.11 or any Permitted Investments;
(7) the payment (directly or through any Parent) of annual management, consulting, monitoring and advising fees and related expenses to the Equity Sponsor and its respective Affiliates pursuant to management agreements described in the ordinary course Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007;
(8) payments by the Issuer or any of business its Restricted Subsidiaries to the Equity Sponsor and its Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Issuer in good faith; provided that the maximum aggregate amount of any such fees in any 12-month period shall not exceed 1.25% of the aggregate transaction value (including enterprise value in connection with acquisitions or divestitures) (or portion thereof) in respect of which such services are rendered (excluding, in any case, commitment or similar fees for providing financing);
(9) loans to employees that are approved in good faith by a majority of the Board of Directors of the Issuer in an amount not to exceed $1.0 5.0 million in outstanding at any calendar year;
(5) the payment of reasonable directors’ fees, indemnification time and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements advances 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 reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services expense reimbursements to employees in the ordinary course of business; and;
(8) any transactions undertaken pursuant to any contractual obligations in existence 10) agreements (and payments relating thereto) existing on the Issue Date (or on the Closing Date and entered into in connection with the Transactions)May 10, 2008, as the same may be amended, modified or replaced from time to time time, so long as such any amendment, modification or replacement is no not materially less favorable to the Company Issuer and the its Restricted Subsidiaries than the agreement in effect on May 10, 2008;
(11) transactions with a joint venture engaged in a Permitted Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Issuer, its Restricted Subsidiaries and Persons who are not Affiliates of the Issuer;
(12) transactions between a Receivables Subsidiary and any material respectPerson in which the Receivables Subsidiary has an Investment;
(13) transactions with customers, clients, suppliers or purchasers or sellers of goods, in each case in the ordinary course of business; and
(14) transactions which have been approved by a majority of the disinterested members of the Board of Directors and with respect to which an Independent Financial Advisor has delivered an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such transaction from a financial point of view.
Appears in 1 contract
Sources: Indenture (Broan-NuTone LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend or conduct any in one transaction or a series of related transactions (including the purchasetransactions, saleinvolving aggregate payments or consideration in excess of $5.0 million, lease make any payment to, or exchange sell, lease, transfer or otherwise dispose of any of its properties or assets to, or the rendering of purchase any service) with property or assets from, or enter into any contract, agreement, loan, advance or guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $10.0 million, the Company delivers to the Trustee a resolution adopted by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and any Permitted Investments that are permitted by this Indenture and transactions permitted by, and complying with, Section 5.1;
(2) the payment (and any agreement, plan or arrangement relating thereto) of reasonable compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnification and insurance arrangements to members of the Board of Directors of the Company or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnification and insurance arrangements to officers, employees and consultants of the Company or any Restricted Subsidiary;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any transaction with an Affiliate in which the only consideration paid by the Company or any Restricted Subsidiary is Qualified Capital Interests of the Company or any Restricted Subsidiary or any issuance of Qualified Capital Interests by the Company or any Restricted Subsidiary;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) transactions in which the Company delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries;
(8) any contribution of capital to the Company or any Restricted Subsidiary;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, on terms that (taken as a whole, is on terms which ) are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could reasonably be available expected to be obtained in a comparable arm’s length transaction on an arm’s-length basis with an unaffiliated third party;; or
(210) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to by the Company or the any Restricted Subsidiary involved made pursuant to management/consulting agreements in such Affiliate Transactionexistence on the Issue Date, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that performance of the terms obligations of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary as required or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance by the terms of Qualified Capital Stock of such agreements; provided, however, that the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 performance by the Company or any of its Restricted Subsidiary Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into in after the ordinary course date of business this Indenture shall only be permitted by this clause (including reasonable benefits thereunder);
10) to the extent that the terms (6taken as a whole) issuances and sales of Qualified Capital Stock any such amendment or new agreement are not otherwise materially disadvantageous to the Holders of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectNotes.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause permit TV Azteca or permit any Restricted Subsidiary to, enter into any transaction (or series of related transactions) with an Affiliate of the Company or TV Azteca (other than the Company, TV Azteca or any of its Restricted Subsidiaries), including any Investment, either directly or indirectly, conduct any business or enter into, renew, amend or conduct any unless such transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of any of their respective Affiliates (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, is on terms which are no less favorable to the Company Company, TV Azteca or such Restricted Subsidiary, as the case may be, Subsidiary than would those that could be available obtained in a comparable transaction on an arm’sarm's-length basis transaction with an unaffiliated third party;
entity that is not an Affiliate; provided, however, that transactions with any Restricted Subsidiary that is not a Wholly Owned Subsidiary of TV Azteca will be subject to this covenant unless no Affiliate of the Company or TV Azteca (2other than a Wholly Owned Subsidiary of TV Azteca) if holds Capital Stock in such Affiliate Transaction or series of related Affiliate Transactions Restricted Subsidiary. For any transaction that involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 millionUS$2,500,000, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event case of a transaction involving TV Azteca or any of its Restricted Subsidiaries, of TV Azteca shall determine that there are no disinterested directorsthe transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution or a TVA Board Resolution, as the case may be, filed with the Trustee. For any transaction that involves in excess of US$15,000,000, the Trustee has received a written Company shall obtain an opinion from an Independent Financial Advisor internationally recognized investment banking firm or other internationally recognized expert with experience in evaluating or appraising the terms and conditions of the type of transaction (or series of related transactions) for which the opinion is required, stating that such transaction (or series of related transactions) is fair to the terms of Company, TV Azteca or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to which opinion shall be filed with the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beTrustee.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall The foregoing provisions will not apply to:
: (1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and or any Restricted Payment or other payment or Investment permitted to be made pursuant to not prohibited by Section 4.09;
, (3ii) any issuance to employees of Qualified Capital Stock TV Azteca of the Companysecurities, or other payments, awards or grants in cash, Qualified Capital Stock of securities or otherwise pursuant to, or the Company funding of, employment, compensation or otherwiseindemnification arrangements, pursuant to employment arrangements or stock option options and stock ownership plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount approved by the Board of Directors of TV Azteca, (iii) loans or advances to Affiliates of TV Azteca and its Restricted Subsidiaries who are also employees of TV Azteca or a Restricted Subsidiary, not to exceed $1.0 million US$2,000,000 in aggregate principal amount outstanding at any calendar year;
one time (5which amount will not be reduced as a result of the forgiveness of any such loan or advance), (iv) the payment of reasonable directors’ feesfees and indemnities to directors of the Company, indemnification TV Azteca or its Restricted Subsidiaries, (v) any sale or grant of advertising time by TV Azteca or a Restricted Subsidiary to any Affiliate, provided that the advertising time is sold or granted to such Affiliate no more than 72 hours prior to the time such advertising time is scheduled to be broadcast and similar arrangementssuch advertising time was otherwise unsold at the time of such sale or grant, consulting fees(vi) any payments or other transactions pursuant to any tax-sharing agreement between the Company, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements TV Azteca and incentive arrangements any other Person with any officer, director or employee of which the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of TV Azteca files a consolidated tax return or with which the Company or TV Azteca is part of a consolidated group for tax purposes, (vii) the receipt granting of Liens by the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken Company pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time Section 4.07(a)(iii) so long as such amendment, modification or replacement transaction is on terms no less favorable to the Company than those that could be obtained in a comparable arm's length transaction with an entity that is not an Affiliate, (viii) the entering into of a Permitted Forward Sale Agreement, (ix) the Rights Grant and the Restricted Subsidiaries Rights Exercise, (x) the entering into the Administrative Trust Agreement and the transactions contemplated thereby, (xi) any Permitted Azteca Holdings/Unefon Purchase Right, (xii) the TV Azteca Option Grant, (xiii) Indebtedness owing to Affiliates Incurred pursuant to Section 4.07(a)(iv), (a)(v) or (a)(vii) hereof, (xiv) entering into the 2008 Collateral Pledge, the 2005 Collateral Pledge or pledge of Unrestricted Shares or any other collateral permitted to secure any Company Refinancing Indebtedness, and any amendments thereto in accordance with the terms of the 2008 Indenture, the 2005 Indenture and the indenture governing any material respectCompany Refinancing Indebtedness, respectively, and the transactions contemplated hereby and thereby, and (xv) the transactions contemplated under the TV Azteca Unefon Arrangements as of the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Azteca Holdings Sa De Cv)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms that are not materially less favorable to the Company or the relevant Subsidiary than those that might reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated third party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Company delivers to the Trustee a written opinion of a nationally recognized investment banking, accounting, consulting or appraisal firm (an “Independent Financial Advisor”) to the effect that the transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by Section 4.7 and Permitted Investments;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, stock, option, deferred compensation and other benefit plans) and indemnities to directors, officers and employees of the Company or any Restricted Subsidiary;
(4) transactions between or among the Company and one (1) or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction) or between one (1) or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction);
(5) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns Equity Interests of or otherwise controls such joint venture or similar entity;
(6) the issuance of Equity Interests (other than Disqualified Equity Interests) of the Company otherwise permitted hereunder;
(7) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(8) transactions as to which the Company delivers to the Trustee a written opinion of an Independent Financial Advisor to the effect that the transaction is fair, from a financial point of view or otherwise, to the Company or the Restricted Subsidiary that is a party thereto, as the case may be;
(9) any contribution of capital to the Company;
(10) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would be available those that might reasonably have been obtained in a comparable arm’s length transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(311) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments sales or other consideration having a Fair Market Value in excess dispositions of $15.0 million, such Affiliate Transaction is in writing accounts receivable and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company related assets and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock interests therein of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made type specified in the ordinary course definition of business;
(4) advances “Qualified Receivables Transaction” to officers, directors, employees a Receivables Subsidiary in a Qualified Receivables Transaction and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business Permitted Investments and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any other transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company a Qualified Receivables Transaction and the Restricted Subsidiaries any other Standard Securitization Undertakings in any material respectconnection with a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (Louisiana-Pacific Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend or conduct any in one transaction or series of related transactions (including the purchasetransactions, saletransfer any of its assets to, lease or exchange of purchase any assets from, or the rendering of enter into any service) with contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any affiliate of any of their respective Affiliates Parent (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, is on unless the terms which thereof are no less favorable to the Company Parent or such Restricted Subsidiary, as Subsidiary than those that could be obtained at the case may be, than would be available time of such transaction in a comparable transaction on an arm’s-length basis dealings with a Person that is not such an unaffiliated third party;
(2) if such affiliate; provided that the Board of Directors must approve each Affiliate Transaction or series of related Affiliate Transactions that involves aggregate payments or other consideration having assets or services with a Fair Market Value in excess of $5.0 10.0 million, such Affiliate Transaction is in writing and . This approval must be evidenced by a majority of the disinterested members of board resolution that states that the Board of Directors of the Company shall have approved such Affiliate Transaction and has determined that such Affiliate Transaction the transaction complies with the foregoing provisions; provided, orfurther that if Parent or any Restricted Subsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $20.0 million, in then prior to the event that there are no disinterested directorsconsummation of such Affiliate Transaction, the Trustee has received Parent must obtain a written favorable opinion from an Independent Financial Advisor stating that the terms of it has determined such Affiliate Transaction are to be fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate TransactionHolders, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written deliver that opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beTrustee.
(b) Notwithstanding The provisions of clause (a) above will not prohibit the foregoing, the restrictions set forth in this Section 4.13 shall not apply tofollowing:
(1) transactions with exclusively between or among (a) Parent and one or more Restricted Subsidiaries or (b) Restricted Subsidiaries; provided, in each case, that no affiliate of Parent (other than another Restricted Subsidiary) owns Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the Company Board of Directors;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between Parent and/or one or more Subsidiaries, on the one hand, and any other Person with which Parent or such Subsidiaries are required or permitted to file a consolidated tax return or with which Parent or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by Parent and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) Restricted Payments which are made in accordance with Section 4.10 and Investments constituting Permitted Investments;
(5) any transaction with an affiliate where the only consideration paid by Parent or any Restricted Subsidiary is Qualified Stock;
(6) the provision of management, financial and operational services by Parent and its Subsidiaries to affiliates of Parent in which Parent or between or among any Restricted Subsidiary has an Investment and the payment of compensation for such services; provided that the Board of Directors has determined that the provision of such services is in the best interests of Parent and the Restricted Subsidiaries;
(27) transactions between Parent or any Permitted Investment Subsidiary and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by this Indenture;
(3) 8) transactions with a Person that is an affiliate solely because Parent or any issuance of Qualified Restricted Subsidiary owns Capital Stock in such Person; provided that no affiliate of the Company, or Parent (other payments, awards or grants in cash, Qualified than a Restricted Subsidiary) owns Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;such Person; or
(49) advances to officers, directors, employees purchases and consultants who are not otherwise Affiliates sales of the Company made raw materials or inventory in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectmarket terms.
Appears in 1 contract
Sources: Indenture (Terra Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Stage I Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Stage I Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that, taken as a whole, is on terms which are no not materially less favorable to the Company Stage I Issuer or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Stage I Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5,000,000, the Stage I Issuer delivers to the Stage I Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Stage I Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20,000,000, the Stage I Issuer must obtain and deliver to the Stage I Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Stage I Issuer or such Restricted Subsidiary, as the case may be, than would be available in from a comparable transaction on an arm’s-length basis with an unaffiliated third partyfinancial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) if such Affiliate Transaction or series the payment of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing reasonable and a majority of the disinterested customary fees and indemnities to members of the Board of Directors of the Company shall have approved Stage I Issuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Stage I Issuer or any Restricted Subsidiary;
(4) transactions between or among the Stage I Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Stage I Issuer otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith;
(6) any agreement or arrangement as in effect on June 18, 2013 and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Stage I Notes in any material respect;
(7) any agreement between any Person and an Affiliate Transaction and determined of such Person existing at the time such Person is acquired by or merged into the Stage I Issuer or a Restricted Subsidiary; provided that such Affiliate Transaction complies with agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto so long as such amendment, extension or modification is not more disadvantageous to the foregoing provisions, or, Holders of the Stage I Notes in any material respect;
(8) transactions in which the event that there are no disinterested directors, Stage I Issuer delivers to the Stage I Trustee has received a written opinion from an Independent Financial Advisor stating to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Stage I Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(29) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Stage I Issuer;
(310) any issuance of Qualified Capital Stock of the Companyexistence of, or other paymentsthe performance by the Stage I Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, awards any stockholders agreement (including any registration rights agreement) to which it is a party as of June 18, 2013 and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or grants in cashthe performance by the Stage I Issuer or any of its Restricted Subsidiaries of obligations under, Qualified Capital Stock any future amendment to any such existing agreement or any similar agreement entered into after June 18, 2013 shall only be permitted by this clause (10) to the extent that the terms of the Company any such amendment or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who new agreement are not otherwise Affiliates of disadvantageous in any material respect to the Company and made Holders when taken as a whole as compared to the original agreement in the ordinary course of businesseffect on June 18, 2013;
(411) advances to officerstransactions with customers, directorsclients, employees suppliers or purchasers or sellers of goods or services that do not directly or indirectly, own Capital Interests in the Stage I Issuer and consultants who are not otherwise Affiliates of in which the Company made Stage I Issuer does not, directly or indirectly, own Capital Interests, in each case, in the ordinary course of business and otherwise in compliance with the terms of this Indenture and which are on terms at least as favorable as might reasonably have been obtained at such time in a comparable arm’s-length transaction with an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of businessunaffiliated party; and
(8) any transactions undertaken pursuant 12) the Transactions and the payment of all fees and expenses related to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: First Supplemental Indenture (Jack Cooper Logistics, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall Parent will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, conduct make any business 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, renewmake, amend amend, renew or conduct extend any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, understanding, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of of, any of their respective Affiliates Affiliates, in each case involving aggregate payments or consideration in excess of $5 million (eacheach of the foregoing, an “Affiliate Transaction”), unless:
(1) such Affiliate TransactionTransaction is on terms that, taken as a whole, is on terms which are no not materially less favorable to the Company Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Parent or such Restricted Subsidiary, Subsidiary with a Person that is not an Affiliate of the Parent or any Restricted Subsidiary (as determined by the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;Parent); and
(2) if the Parent delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25 million, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event this Section 4.11 and that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves has been approved by a majority of the Disinterested Members; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 50 million, such Affiliate Transaction is in writing and the Trustee has received a written an opinion from issued by an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, or series of related Affiliate Transactions is fair to the Parent or such Restricted Subsidiary from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this provisions of Section 4.13 shall not apply to4.11(a) hereof:
(1) transactions with between or among the Company and any Restricted Subsidiary or between or among Parent and/or its Restricted Subsidiaries;
(2) any Restricted Payments that are permitted by the provisions of Section 4.07 and Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Investments;
(3) any issuance or sale of Qualified Capital Stock Equity Interests (other than Disqualified Stock) of, or capital contributions to, the Parent;
(4) transactions pursuant to agreements or arrangements in effect on the Issue Date and referenced in the Offering Circular, or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Parent and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date;
(5) payments by the Parent and its Subsidiaries pursuant to tax sharing agreements among the Parent and its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the CompanyParent and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Parent, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Parent and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(6) payment of reasonable and customary fees and reimbursement of expenses paid to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Parent or any Subsidiary thereof;
(7) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Parent or any Restricted Subsidiary with officers, employees and consultants of the Parent or any Subsidiary thereof and the payment of compensation, reimbursement of expenses paid or loans (or cancellation of loans) to officers, employees and consultants of the Parent or any Subsidiary thereof (including issuances of securities and other payments, awards or grants in cash, Qualified Capital Stock securities or otherwise pursuant to, or the funding of, employee benefit plans, employee stock option or similar plans), entered into in the ordinary course of business or otherwise approved by a majority of the Company Disinterested Members;
(8) purchases and sales of raw materials or otherwiseInventory in the ordinary course of business on market terms;
(9) (a) transactions with customers, pursuant clients, lessors, landlords, suppliers, contractors, purchasers or sellers of goods or services, or transactions otherwise relating to employment arrangements the purchase or stock option plans for sale of goods or services, in each case in the benefit ordinary course of employeesbusiness and otherwise in compliance with the terms of this Indenture, officers, directors, which are fair to the Parent and consultants who are not otherwise Affiliates its Restricted Subsidiaries in the reasonable determination of the Company and made Board of Directors or the senior management of the Parent, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (b) transactions with Joint Ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(410) advances to officers, directors, employees and consultants who are not otherwise Affiliates transactions with a Person (other than an Unrestricted Subsidiary of the Company made Parent) that is an Affiliate of the Parent solely because the Parent or a Restricted Subsidiary of the Parent owns an equity interest in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearor otherwise controls such Person;
(511) the payment of reasonable directors’ fees, indemnification formation 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds maintenance of any Future ABRY Subordinated Indebtedness);
(7) a provision consolidated group or purchase of goods subgroup for tax, accounting or services cash pooling or management purposes in the ordinary course of business;
(12) transactions entered into by a Person prior to the time such Person becomes a Restricted Subsidiary or is merged or consolidated into the Parent or a Restricted Subsidiary (provided such transaction is not entered into in contemplation of such event);
(13) transactions permitted by, and complying with, the provisions of Section 5.01;
(14) transactions in which the Parent or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee an opinion issued by an Independent Financial Advisor stating that such transaction or series of related transactions is fair to the Parent or such Restricted Subsidiary from a financial point of view and that the terms are not materially less favorable to the Parent or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(15) transactions between the Parent or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Parent; provided, however, that such director abstains from voting as a director of the Parent on any matter involving such other Person; and
(8) 16) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection customary transaction with the Transactions), a Receivables Entity effected as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectpart of a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (Tronox LTD)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such the Company delivers to the Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million500,000, a resolution of the Board of Directors of the Company set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies (b) with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, respect to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 5.0 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to appraisal or investment banking firm of national standing; provided that the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 following shall not apply to:
be deemed Affiliate Transactions: (1) transactions with or among pursuant to the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
Senior Credit Facilities; (2) customary investment banking or financial advisory services rendered by CIBC Wood Gundy Securities Corp. or Onyx Partners, Inc. or any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
of their respective affiliates; (3) transactions under the ▇▇▇▇▇▇ Lease (as such agreement may be amended or replaced, so long as any issuance of Qualified Capital Stock of amounts paid under such amended or replacement agreement do not exceed the Company, or other payments, awards or grants amounts payable under such agreement as in cash, Qualified Capital Stock of effect on the Issuance Date); (4) payments made by the Company or otherwise, any of its Restricted Subsidiaries pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates terms of the Company Consulting and made Strategic Services Agreement (as such agreement may be amended or replaced, so long as any amounts paid under such amended or replacement agreement do not exceed the amounts payable under such agreement as in effect on the ordinary course of business;
Issuance Date); (45) advances transactions pursuant to officersthe Shareholders Agreement and the Registration Rights Agreement, directors, employees and consultants who are not otherwise Affiliates of each as in effect on the Issuance Date; (6) any employment agreement entered into by the Company made or any of its Restricted Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) consistent with the payment of reasonable 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 past practice of the Company or any such Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
Subsidiary, (7) a provision transactions between or purchase of goods or services in among the ordinary course of business; and
Company and/or its Restricted Subsidiaries, and (8) any transactions undertaken pursuant to any contractual obligations in existence on Restricted Payments and Permitted Investments that are permitted by the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectprovisions of Section 4.07.
Appears in 1 contract
Sources: Indenture (Talton Invision Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Borrower will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate of any of their respective Affiliates the Borrower (each, an “"Affiliate Transaction”"), unless:
(1i) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Borrower or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Borrower or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2ii) if such the Borrower delivers to the Agent:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 50 million, a resolution of the Borrower's Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction is in writing complies with this Section 5.08 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the such Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(32) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 150 million, an opinion as to the fairness to the Borrower or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, to the Company appraisal or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beinvestment banking firm of national standing.
(b) Notwithstanding The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:provisions of paragraph (a): E-57 TABLE OF CONTENTS
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and employment agreement or director's engagement agreement, employee benefit plan, officer indemnification agreement or similar agreement entered into by the Borrower or any of its Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Subsidiaries in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearof the Borrower or such Restricted Subsidiary;
(5ii) transactions between or among the Borrower and/or its Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors fees and provision to directors’ fees, indemnification officers and employees of customary indemnities and customary benefits pursuant to employee benefit plans 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 ;
(v) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company Borrower;
(vi) (A) corporate sharing agreements among the Borrower and its Subsidiaries with respect to tax sharing and general overhead and other administrative matters and (B) any other intercompany arrangements disclosed or described in the Borrower's report on Form 10-K for the fiscal year ended December 31, 2003 (including the exhibits thereto), all as in effect on the date hereof, and any Restricted Subsidiary amendment or replacement of any of the foregoing so long as such amendment or replacement agreement is not less advantageous to the Borrower in any material respect than the agreement so amended or replaced, as such agreement was in effect on the date hereof;
(vii) transactions entered into as part of a Permitted Receivables Financing;
(viii) Restricted Payments that are permitted by the provisions of Section 5.03 hereof;
(ix) loans or advances to employees in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services not to exceed $10 million in the ordinary course of businessaggregate outstanding at any one time; and
(8) x) any transactions undertaken agreement, instrument or arrangement as in effect on the date hereof or any amendment thereto or any transaction contemplated thereby (including pursuant to any contractual obligations amendment thereto) in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time any replacement agreement thereto so long as any such amendment, modification amendment or replacement agreement is no less favorable not more disadvantageous to the Company and the Restricted Subsidiaries Lenders in any material respectrespect than the original agreement as in effect on the date hereof as determined in good faith by the Chief Financial Officer or other senior financial officer of the Borrower.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not cause permit TV Azteca or permit any Restricted Subsidiary to, enter into any transaction (or series of related transactions) with an Affiliate of the Company or TV Azteca (other than the Company, TV Azteca or any of its Restricted Subsidiaries), including any Investment, either directly or indirectly, conduct any business or enter into, renew, amend or conduct any unless such transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of any of their respective Affiliates (each, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction, taken as a whole, is on terms which are no less favorable to the Company Company, TV Azteca or such Restricted Subsidiary, as the case may be, Subsidiary than would those that could be available obtained in a comparable transaction on an arm’sarm's-length basis transaction with an unaffiliated third party;
entity that is not an Affiliate; provided, however, that transactions with any Restricted Subsidiary that is not a Wholly Owned Subsidiary of TV Azteca will be subject to this covenant unless no Affiliate of the Company or TV Azteca (2other than a Wholly Owned Subsidiary of TV Azteca) if holds Capital Stock in such Affiliate Transaction or series of related Affiliate Transactions Restricted Subsidiary. For any transaction that involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 millionUS$2,500,000, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event case of a transaction involving TV Azteca or any of its Restricted Subsidiaries, of TV Azteca shall determine that there are no disinterested directorsthe transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution or a TVA Board Resolution, as the case may be, filed with the Trustee. For any transaction that involves in excess of US$15,000,000, the Trustee has received a written Company shall obtain an opinion from an Independent Financial Advisor internationally recognized investment banking firm or other internationally recognized expert with experience in evaluating or appraising the terms and conditions of the type of transaction (or series of related transactions) for which the opinion is required, stating that such transaction (or series of related transactions) is fair to the terms of Company, TV Azteca or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to which opinion shall be filed with the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beTrustee.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall The foregoing provisions will not apply to:
: (1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2i) any Permitted Investment and or any Restricted Payment or other payment or Investment permitted to be made pursuant to not prohibited by Section 4.09;
, (3ii) any issuance to employees of Qualified Capital Stock TV Azteca of the Companysecurities, or other payments, awards or grants in cash, Qualified Capital Stock of securities or otherwise pursuant to, or the Company funding of, employment, compensation or otherwiseindemnification arrangements, pursuant to employment arrangements or stock option options and stock ownership plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount approved by the Board of Directors of TV Azteca, (iii) loans or advances to Affiliates of TV Azteca and its Restricted Subsidiaries who are also employees of TV Azteca or a Restricted Subsidiary, not to exceed $1.0 million US$2,000,000 in aggregate principal amount outstanding at any calendar year;
one time (5which amount will not be reduced as a result of the forgiveness of any such loan or advance), (iv) the payment of reasonable directors’ feesfees and indemnities to directors of the Company, indemnification TV Azteca or its Restricted Subsidiaries, (v) any sale or grant of advertising time by TV Azteca or a Restricted Subsidiary to any Affiliate, provided that the advertising time is sold or granted to such Affiliate no more than 72 hours prior to the time such advertising time is scheduled to be broadcast and similar arrangementssuch advertising time was otherwise unsold at the time of such sale or grant, consulting fees(vi) any payments or other transactions pursuant to any tax-sharing agreement between the Company, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements TV Azteca and incentive arrangements any other Person with any officer, director or employee of which the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of TV Azteca files a consolidated tax return or with which the Company or TV Azteca is part of a consolidated group for tax purposes, (vii) the receipt granting of Liens by the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken Company pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time Section 4.07(a)(iii) so long as such amendment, modification or replacement transaction is on terms no less favorable to the Company than those that could be obtained in a comparable arm's length transaction with an entity that is not an Affiliate, (viii) the entering into of a Permitted Forward Sale Agreement, (ix) the Rights Grant and the Restricted Subsidiaries Rights Exercise, (x) the entering into the Administrative Trust Agreement and the transactions contemplated thereby, (xi) any Permitted Azteca Holdings/Unefon Purchase Right, (xii) the TV Azteca Option Grant, (xiii) Indebtedness owing to Affiliates Incurred pursuant to Section 4.07(a)(iv), (a)(v) or (a)(vii) hereof, (xiv) entering into the 2008 Collateral Pledge, the 2005 Collateral Pledge, the 2003 Collateral Pledge or pledge of Unrestricted Shares or any other collateral permitted to secure any Company Refinancing Indebtedness, and any amendments thereto in accordance with the terms of the Indenture, the 2005 Indenture, the 2003 Indenture and the indenture governing any material respectCompany Refinancing Indebtedness, respectively, and the transactions contemplated hereby and thereby, and (xv) the transactions contemplated under the TV Azteca Unefon Arrangements as of the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Azteca Holdings Sa De Cv)
Limitation on Transactions with Affiliates. (a) The Company shall notEnter into any transaction, and shall not cause or permit including any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any assets property or the rendering of any service, with any Affiliate unless such transaction is (a) with or for the benefit of any of their respective Affiliates otherwise permitted under this Agreement, and (each, an “Affiliate Transaction”), unless:
(1b) such Affiliate Transaction, taken as a whole, is on upon terms which are no less favorable to the Company Borrower or such Restricted Subsidiary, as the case may be, than it would be available obtain in a comparable arm’s length transaction on with a Person which is not an arm’s-length basis with an unaffiliated third party;Affiliate; provided that nothing contained in this Section 7.10 shall be deemed to prohibit: 10 [Treatment of Foreign Subsidiaries to be determined.]
(2a) if such Affiliate Transaction the Borrower or series any of related Affiliate Transactions involves aggregate payments its Subsidiaries from entering into or performing any consulting, management or employment agreements or other consideration having compensation arrangements with a Fair Market Value director, officer or employee of the Borrower or any of its Subsidiaries that provides for annual aggregate base compensation not in excess of $5.0 million[2,000,000] for each such director, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company officer or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.employee;
(b) Notwithstanding the foregoingBorrower or any of its Subsidiaries from entering into or performing an agreement with any CD&R Investor or any Affiliate of any CD&R Investor for the rendering of management, consulting or financial advisory services for compensation not to exceed in the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiariesaggregate $[ ] per year plus reasonable out-of-pocket expenses;
(2c) the payment of transaction expenses in connection with this Agreement or any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09of the Transactions;
(3d) the Borrower or any issuance of Qualified its Subsidiaries from entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent or employee of the Borrower or any of its Subsidiaries or any Parent Entity, 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 Entity (provided that, if such Parent Entity shall own any material assets other than the Capital Stock of the CompanyBorrower or another Parent Entity, or other paymentsassets relating to the ownership interest of such Parent Entity in the Borrower or another Parent Entity, awards such liabilities shall be limited to the reasonable and proportional share, as determined by the Borrower in its reasonable discretion, of such liabilities relating or grants allocable to the ownership interest of such Parent Entity in cashthe Borrower or another Parent Entity and such other related assets) or the Borrower or any of its Subsidiaries, Qualified Capital Stock (B) incurred to third parties for any action or failure to act of the Company Borrower or otherwiseany of its Subsidiaries or any Parent Entity or any of their predecessors or successors, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates (C) arising out of the Company and made in performance by any Affiliate of any CD&R of management consulting or financial advisory services provided to the ordinary course Borrower or any of business;
its Subsidiaries or any Parent Entity, (4D) advances to officers, directors, employees and consultants who are not otherwise Affiliates arising out of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in fact that any calendar year;
(5) the payment of reasonable directors’ feesindemnitee was or is a director, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director agent or employee of the Company Borrower or any Restricted Subsidiary entered into in of its Subsidiaries or any Parent Entity, or is or was serving at the ordinary course request of business any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (including reasonable benefits thereunder)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 Borrower or any of its Subsidiaries or any Parent Entity;
(6e) issuances and sales the Borrower or any of Qualified Capital Stock of its Subsidiaries from performing any agreements or commitments with or to any Affiliate existing on the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)Closing Date;
(7f) any transaction permitted under Sections 3.4(b), 7.4, 7.5, 7.7, 7.8(e) or 7.8(f) and any transaction with a provision Wholly Owned Subsidiary of the Borrower;
(g) the Borrower from paying to CD&R, any CD&R Investor or purchase any of goods or services their respective Affiliates fees of up to $[ ] in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into aggregate, plus out-of-pocket expenses, in connection with the Transactions);
(h) the Transactions and all transactions relating thereto and agreements in connection therewith, as including the same may be amended, modified Investment Documents; and
(i) any issuance or replaced from time to time so long as such amendment, modification sale of Capital Stock of the Borrower or replacement is no less favorable capital contribution to the Company and the Restricted Subsidiaries in any material respectBorrower.
Appears in 1 contract
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:
(i) sell, directly lease, transfer or indirectlyotherwise dispose of any of its property or assets to,
(ii) purchase any property or assets from,
(iii) make any Investment in, conduct any business or
(iv) enter into or enter into, renew, amend or conduct extend any transaction contract, agreement or series of related transactions (including the purchase, sale, lease or exchange of any assets or the rendering of any service) understanding with or for the benefit of, any Affiliate of the Company or of any of their respective Affiliates Subsidiary (each, an “Affiliate Transaction”), unless:
(1) involving aggregate payments or consideration in excess of $15.0 million, unless the terms of such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than would those that could be available obtained in a comparable arm’s length transaction on an arm’s-length basis with by the Company or such Restricted Subsidiary from an unaffiliated third party;
(2) party as determined by the Company in good faith; provided that, if such the Company or any Restricted Subsidiary enters into an Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 50.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved or a committee thereof shall, prior to the consummation of such Affiliate Transaction and Transaction, have determined that such Affiliate Transaction complies with meets the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may bestandard.
(b) Notwithstanding the foregoing, the The restrictions set forth in this Section 4.13 3.16(a) shall not apply to:
(1i) transactions with any transaction between, or among Restricted Subsidiaries, and/or between or among the Company and any Restricted Subsidiary or between or among (or, in any case, any entity that becomes a Restricted SubsidiariesSubsidiary as a result of such transaction);
(2ii) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made transactions entered into pursuant to Section 4.09the terms of the Master Intercompany Agreements, the Tax Allocation Agreement or the Support Agreement;
(3iii) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary transactions entered into in the ordinary course of business (including reasonable benefits thereunder)or consistent with past practice;
(6iv) issuances any transaction effected in connection with a Qualified Securitization Transaction;
(v) reasonable fees, salaries, bonuses and sales other compensation (including equity-based compensation) paid to and advances or reimbursement of Qualified expenses (including employee benefit and pension expenses) to and indemnity provided (including under insurance policies) on behalf of officers, directors, employees or consultants of the Company or any Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such officers, directors, consultants or employees) in the reasonable determination of a member of senior management of the Company or by the Company’s Board of Directors;
(vi) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement in effect on the Issue Date;
(vii) Restricted Payments and Permitted Investments (other than pursuant to clause (5) of the definition thereof) permitted by this Indenture;
(viii) any Management Advances and any waiver or transaction with respect thereto;
(ix) transactions with Unrestricted Subsidiaries, joint venture partners, dealers, customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice which are, taken as a whole, fair to the Company or its Restricted Subsidiaries, in the reasonable determination of 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;
(x) any employment, compensation or severance arrangement entered into by the Company or any of its Subsidiaries in the ordinary course of business or consistent with past practice that is not otherwise prohibited by this Indenture; and
(xi) (A) the issuance or sale of Capital Stock (other than Disqualified Capital Stock) of the Company to any Affiliate of the Company and the granting of registration and other customary rights in connection therewith; (B) the payment of costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder or similar agreement;
(xii) (A) investments by Affiliates of the Company in Indebtedness or Disqualified Capital Stock of the Company or the receipt any of the proceeds Restricted Subsidiaries so long as the investment was offered by the Company or such Restricted Subsidiary generally to other non-affiliated third-party investors on the same or more favorable terms and (B) payments to Affiliates of capital contributions the Company in respect of Qualified Indebtedness or Disqualified Capital Stock (including from of the proceeds Company or any of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services the Restricted Subsidiaries contemplated in the ordinary course foregoing clause (xii)(A) or that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in accordance with the terms of businesssuch Indebtedness or Disqualified Capital Stock; and
(8) any xiii) transactions undertaken entered into pursuant to any contractual obligations in existence on the Issue Date (terms of or on contemplated by the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectAlliance Agreement.
Appears in 1 contract
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to SECTION 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect, including, without limitation, transactions with Triumph Receivables, LLC in connection with the Existing Receivables Facility;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, SECTION 5.1;
(8) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(110) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Triumph Group Inc)
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving with respect to each such Affiliate Transaction or series of related Affiliate Transactions aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with an unaffiliated party;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitations do not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7;
(2) the payment of reasonable and customary compensation and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries and transactions between or among the Company or any Restricted Subsidiary, on the one hand, and any Leasing Subsidiary, on the other hand, (including the contribution of overhead costs) in the ordinary course of business and consistent with past practice or constituting undertakings customary in lease securitization transactions for the benefit of any Leasing Subsidiary;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous in any material respect to the Holders of the Notes;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, Article V and Section 10.5 hereof;
(8) any transaction with a joint venture, partnership, limited liability company or other entity that constitutes an Affiliate solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third partyAffiliate of the Company;
(210) if such Affiliate Transaction or series transactions effected as part of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Qualified Receivables Transaction, as the case may be; and
(311) if such Affiliate Transaction sales or series leases of related Affiliate Transactions involves aggregate payments goods to joint ventures and Affiliates (but excluding any officers or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(bdirectors) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount for less than fair market value but not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no for less favorable to the Company and the Restricted Subsidiaries in any material respectthan cost.
Appears in 1 contract
Sources: Indenture (Oshkosh Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”)") involving aggregate consideration in excess of $5.0 million, unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or such Restricted Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, such Affiliate Transaction is in writing and the Company delivers to the Senior Subordinated Notes Trustee a resolution adopted by the majority of the disinterested members of the Board of Directors of the Company shall have approved Directors, approving such Affiliate Transaction and determined set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of securities, or other payments, Guarantees, awards or grants in cash, securities or otherwise pursuant to, or the foregoing provisionsfunding of, oremployment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to employees and directors of the Company pursuant to plans approved by the Board of Directors, (iv) loans or advances to employees in the ordinary course of business in accordance with past practices of the Company, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Subsidiaries, (vi) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, (vii) any transaction effected as part of a Qualified Receivables Transaction, (viii) any payment by the Company to Holdings to permit Holdings to pay any Federal, state, local or other taxes that are then actually due and owing by Holdings, (ix) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of the Company and its Restricted Subsidiaries, in each case, in the event that there are no disinterested directorsordinary course of business, (x) any employment, compensation, noncompetition or confidentiality agreement entered into by the Company and its Restricted Subsidiaries with its employees in the ordinary course of business, (xi) the payment by the Company of fees, expenses and other amounts to Cypress and its Affiliates in connection with the Recapitalization, (xii) payments by the Company or any of its Restricted Subsidiaries to Cypress and its Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement, or in respect of other investment banking activities, in each case, as determined by the Board of Directors in good faith, (xiii) any issuance of Capital Stock of the Company (other than Disqualified Stock), (xiv) any agreement as in effect as of the date of this Indenture or any amendment or replacement hereto so long as any such amendment or replacement agreement is not more disadvantageous to the Senior Subordinated Noteholders of the Senior Subordinated Notes in any material respect than the original agreement as in effect on the Closing Date and (xv) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Senior Subordinated Notes Trustee has received a written opinion letter from an Independent Financial Advisor stating that such transaction is fair to the terms of Company or such Affiliate Transaction are fair, Restricted Subsidiary from a financial point of view, to view or meets the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series requirements of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beSection 4.07(a).
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: Indenture (Wesco Distribution Inc)
Limitation on Transactions with Affiliates. (a) The Company Holdings shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseGuarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of, any Affiliate (each of any of their respective Affiliates (eachthe foregoing, an “"Affiliate Transaction”)") involving aggregate consideration in excess of $5.0 million, unless:
unless (1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to Holdings or the Company or such relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by Holdings or such Restricted Subsidiary with an unaffiliated third party;
unrelated Person and (2ii) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, such Affiliate Transaction is in writing and Holdings delivers to the Senior Discount Notes Trustee a resolution adopted by the majority of the disinterested members of the Board of Directors of the Company shall have approved Directors, approving such Affiliate Transaction and determined set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of securities, or 40 other payments, Guarantees, awards or grants in cash, securities or otherwise pursuant to, or the foregoing provisionsfunding of, oremployment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) the grant of stock options or similar rights to employees and directors of Holdings pursuant to plans approved by the Board of Directors, (iv) loans or advances to employees in the ordinary course of business in accordance with past practices of Holdings, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time, (v) the payment of reasonable fees to directors of Holdings and its Restricted Subsidiaries who are not employees of Holdings or its Subsidiaries, (vi) any transaction between Holdings and a Restricted Subsidiary or between Restricted Subsidiaries, (vii) any transaction effected as part of a Qualified Receivables Transaction, (viii) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees of Holdings and its Restricted Subsidiaries, in each case, in the event that there are no disinterested directorsordinary course of business, (ix) any employment, compensation, noncompetition or confidentiality agreement entered into by Holdings and its Restricted Subsidiaries with its employees in the ordinary course of business, (x) the payment by Holdings of fees, expenses and other amounts to Cypress and its Affiliates in connection with the Recapitalization, (xi) payments by Holdings or any of its Restricted Subsidiaries to Cypress and its Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement, or in respect of other investment banking activities, in each case, as determined by the Board of Directors in good faith, (xii) any issuance of Capital Stock of Holdings (other than Disqualified Stock), (xiii) any agreement as in effect as of the date of this Indenture or any amendment or replacement hereto so long as any such amendment or replacement agreement is not more disadvantageous to the Senior Discount Noteholders of the Senior Discount Notes in any material respect than the original agreement as in effect on the Closing Date and (xiv) transactions in which Holdings or any of its Restricted Subsidiaries, as the case may be, delivers to the Senior Discount Notes Trustee has received a written opinion letter from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view, to view or meets the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series requirements of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beSection 4.07(a).
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
Sources: Indenture (Wesco Distribution Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Garden State will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into or enter into, renew, amend or conduct permit to exist any transaction (or series of related transactions transactions) (including the each a "Transaction") with any Affiliate of Garden State or any Unrestricted Subsidiary of Garden State, including, without limitation, any sale, purchase, sale, lease or exchange loan or any other direct or indirect payment, transfer or other disposition of any assets assets, property or the rendering of any service) with or for the benefit of any of their respective Affiliates services, unless (each, an “Affiliate Transaction”), unless:
(1a) such Affiliate Transaction, taken as a whole, Transaction is on terms which are no less favorable to the Company Garden State or such Restricted Subsidiary, as the case may be, than would those that could be available obtained in a comparable transaction on an arm’sarm's-length basis transaction with an unaffiliated independent third party;
party (2the "Fairness Condition") if and (b) prior to effecting such Affiliate Transaction, Garden State shall deliver to the Trustee (i) with respect to any Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 1.0 million, such Affiliate Transaction is in writing and an officers' certificate certifying that a majority of the disinterested members of the Board of Directors of the Company shall have Garden State has approved such Affiliate Transaction and has determined that the terms of such Affiliate Transaction complies satisfy the Fairness Condition and (ii) in addition, with the foregoing provisions, or, respect to any Transaction involving (x) aggregate consideration in the event that excess of $1.0 million in which there are no disinterested directorsdirectors or (y) aggregate consideration in excess of $10.0 million, the Trustee has received a written opinion from an Independent Financial Advisor a nationally recognized investment banking firm stating that the terms of such Affiliate Transaction satisfy the Fairness Condition or are fair, fair to Garden State or such Restricted Subsidiary from a financial point of view, . Clause (b)(ii)(y) shall not apply to purchases of newsprint in the Company ordinary course of business by Garden State and its Restricted Subsidiaries from Affiliates of Garden State or the of its Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Subsidiaries. Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall provision will not apply to:
to (1A) transactions with any Transaction between Garden State and a Restricted Subsidiary of Garden State, or among between Restricted Subsidiaries of Garden State (PROVIDED that in the Company and case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary, no affiliate of Garden State is a direct or between or among Restricted Subsidiaries;
(2) any Permitted Investment indirect investor in such Subsidiary other than through Garden State), and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Companytransaction, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
, between Garden State and its Restricted Subsidiaries, on the one hand, and Denver Newspapers or its wholly owned Subsidiaries (4as long as Denver Newspapers is a Subsidiary of ANI), on the other hand, (B) advances to officersthe making of Permitted Investments, directors(C) the making of Restricted Payments in accordance with Section 4.10, employees and consultants who are not otherwise Affiliates (D) the making of Permitted Intercompany Payments. In connection with this covenant, any determination regarding whether a director is "disinterested" will be made on the Company made basis of whether such director has, among other things, a personal stake in the ordinary course of business and in an amount not or transactions requiring any such determination to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectmade.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall notNeither FelCor LP nor FelCor shall, and neither FelCor LP nor FelCor shall not cause or permit any of their respective Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into, renew, amend renew or conduct extend any transaction or series of related transactions (including including, without limitations, the purchase, sale, lease or exchange of any assets property or assets, or the rendering of any service) with any holder (or for the benefit any Affiliate of such holder) of 5% or more of any class of Capital Stock of FelCor LP or FelCor or with any Affiliate of FelCor LP or FelCor or any of their respective Affiliates Restricted Subsidiaries, except upon fair and reasonable terms no less favorable to FelCor LP, FelCor or such Restricted Subsidiary than could be 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 that is not such a holder or an Affiliate. The foregoing limitation shall not limit, and shall not apply to: (eachi) transactions (A) approved by a majority of the independent directors of FelCor or (B) for which FelCor LP, an “Affiliate Transaction”)FelCor or any Restricted Subsidiary delivers to the Trustee and the Collateral Agent a written opinion of a nationally recognized investment banking firm stating that the transaction is fair to FelCor LP, unless:
FelCor or such Restricted Subsidiary from a financial point of view; (1ii) any transaction solely between FelCor LP or FelCor and any of their respective Wholly Owned Restricted Subsidiaries or solely between Wholly Owned Restricted Subsidiaries; (iii) the payment of reasonable and customary fees and expenses to directors of FelCor who are not employees of FelCor; (iv) any payments or other transactions pursuant to any tax sharing agreement between FelCor LP or FelCor and any other Person with which FelCor LP or FelCor files a consolidated tax return or with which FelCor LP or FelCor is part of a consolidated group for tax purposes; (v) any Restricted Payments not prohibited by Section 4.04; (vi) transactions pursuant to agreements or arrangements in effect on the Closing Date or any amendment, modification or supplement thereto or replacement thereof, as long as such Affiliate Transactionagreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more disadvantageous to FelCor, FelCor LP and their Restricted Subsidiaries than the original agreement or arrangement in existence on terms which the Closing Date; (vii) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by FelCor, FelCor LP or any of their Restricted Subsidiaries with officers and employees of FelCor or any of its Restricted Subsidiaries that are no less favorable Affiliates of FelCor or FelCor LP and the payment of compensation to the Company such officers and employees (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) so long as such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of agreement has been approved by the Board of Directors of FelCor; (viii) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of FelCor or any of its Restricted Subsidiaries; (ix) any transaction with any Person that is not an Affiliate immediately before the Company shall have approved consummation of such transaction that becomes an Affiliate as a result of such transaction; or (x) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisionssolely because FelCor LP, or, in the event that there are no disinterested directors, the Trustee has received FelCor or a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved owns an equity interest in such Affiliate Transactionjoint venture, as partnership, limited liability company or other entity. Notwithstanding the case may be; and
(3) if such Affiliate Transaction foregoing, any transaction or series of related Affiliate Transactions involves transactions covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (x) of this paragraph, (a) the aggregate payments amount of which exceeds $5 million in value, must be approved or other consideration having a Fair Market Value determined to be fair in excess of $15.0 millionthe manner provided for in clause (i)(A) or (B) above, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoingaggregate amount of which exceeds $10 million in value, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted must be determined to be made pursuant to Section 4.09;
(3) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made fair in the ordinary course of business;
manner provided for in clause (4i)(B) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectabove.
Appears in 1 contract
Sources: Indenture (FelCor Lodging Trust Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Issuer, taken as a whole, is on terms which are no less favorable to or the Company relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis Subsidiary with an unaffiliated third party;; and
(2ii) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 10.0 million, the Issuer delivers to the Trustee a Board Resolution adopted in good faith by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction is and set forth in writing an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and a majority shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) the disinterested payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company shall have approved Issuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary;
(4) transactions between or among the Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted hereunder and the granting of registration and other customary rights in connection therewith;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) any agreement between any Person and an Affiliate Transaction and determined of such Person existing at the time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such Affiliate Transaction complies with agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the foregoing provisions, or, Holders in the event that there are no disinterested directors, good faith judgment of the board of directors of the Issuer when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);
(8) transactions in which the Issuer delivers to the Trustee has received a written opinion from a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor stating Advisor”) to the effect that the terms of such Affiliate Transaction are transaction is fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company Issuer and any Restricted Subsidiary or between or among relevant Restricted Subsidiaries;
(29) any Permitted Investment and any Restricted Payment or other payment or Investment permitted contribution of capital to be made pursuant to Section 4.09the Issuer;
(310) the existence of, or the performance by the Issuer or any issuance of Qualified Capital Stock its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement) to which it is a party as of the CompanyIssue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or other paymentsthe performance by the Issuer or any of its Restricted Subsidiaries of obligations under, awards any future amendment to any such existing agreement or grants in cash, Qualified Capital Stock any similar agreement entered into after the Issue Date shall only be permitted by this clause (10) to the extent that the terms of the Company any such amendment or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who new agreement are not otherwise Affiliates of disadvantageous in any material respect to the Company and made Holders when taken as a whole as compared to the original agreement in effect on the ordinary course of businessIssue Date;
(411) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made transactions with Burger King Corporation in the ordinary course of business and otherwise in compliance with the terms of this Indenture which, in the good faith determination of the Issuer, are fair to the Issuer and its Restricted Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such time from an amount not to exceed $1.0 million in any calendar year;unaffiliated party; and
(512) the payment of reasonable directors’ fees, indemnification all fees 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant expenses related to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect.
Appears in 1 contract
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, conduct make any business 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, renew, into or make or amend or conduct any transaction or series of related transactions (including the purchasetransactions, salecontract, lease agreement, loan, advance or exchange of any assets or the rendering of any service) with Guarantee with, or for the benefit of, any Affiliate of any the Company (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction, taken as a whole, Transaction is on terms which that are no not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate;
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the Company must obtain and deliver to the Trustee a written opinion of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor”) stating that the transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. The foregoing limitation does not limit, and shall not apply to:
(1) Restricted Payments that are permitted by the provisions of this Indenture pursuant to Section 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment, modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect, including, without limitation, (i) transactions with Triumph Receivables, LLC in connection with the Existing Receivables Facility and (ii) transactions with Carlyle as set forth in Note 15 to the Interim Unaudited Condensed Consolidated Financial Statements of ▇▇▇▇▇▇ Aircraft Industries, Inc. for the quarter ended March 28, 2010, incorporated by reference in the Offering Memorandum from ▇▇▇▇▇▇ Aircraft Industries, Inc.’s Quarterly Report on Form 10-Q for the quarterly period ended March 28, 2010.
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, Section 5.1;
(8) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than would those that could be available obtained in a comparable arm’s length transaction on with a Person that is not an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beCompany; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(110) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance effected as part of a Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;
(5) the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectReceivables Transaction.
Appears in 1 contract
Sources: Indenture (Triumph Group Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly make any payment to, or indirectlysell, conduct lease, transfer or otherwise dispose of any business of its properties or assets to, or purchase any property or assets from, or enter intointo or make or amend any transaction, renewcontract, amend agreement, understanding, loan, advance or conduct any transaction or series of related transactions (including the purchaseguarantee with, sale, lease or exchange of any assets or the rendering of any service) with or for the benefit of of, any of their respective Affiliates Affiliate (each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company Issuer or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Issuer or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 2.0 million, a resolution of the Board of Directors set forth in an Officer’s Certificate certifying that such Affiliate Transaction is in writing complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beDirectors; and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 5.0 million, such Affiliate Transaction is in writing and an opinion as to the Trustee has received a written opinion from an Independent Financial Advisor stating that fairness to the terms Holders of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1) any employment agreement entered into by the Issuer or any of the Restricted Subsidiaries in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(2) transactions with between or among the Company and any Restricted Subsidiary or between or among Issuer and/or the Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance loans, advances, payment ofreasonable fees, indemnification of Qualified Capital Stock of the Companydirectors, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment similar arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise consultants;
(4) sales ofEquity Interests (other than Disqualified Stock) ofthe Issuer to Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearIssuer;
(5) the payment of reasonable directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses transactions under any contract 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 agreement in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken pursuant to any contractual obligations in existence effect on the Issue Date (or on the Closing Date and entered into in connection with the Transactions), date of this Indenture as the same may be amended, modified or replaced from time to time so long as such any amendment, modification modification, or replacement is no less favorable to the Company Issuer and the Restricted Subsidiaries than the contract or agreement as in any material respecteffect on the date of this Indenture;
(6) Permitted Investments and Restricted Payments that are permitted by Section 4.7; and
(7) transactions between the Issuer and Sagamore in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Barrington Quincy LLC)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct make any business payment to, or enter intosell, renewlease, amend transfer or conduct otherwise dispose of any of its properties or assets to, or purchase any property or assets from in any transaction or series of related transactions (including the purchasetransactions, saleor enter into or make or amend, lease any contract, agreement, loan, advance or exchange of any assets or the rendering of any service) with guarantee with, or for the benefit of, any Affiliate of any the Issuer (each of their respective Affiliates (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, unless:
(1i) such Affiliate TransactionTransaction is on terms that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated third party; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the Issuer delivers to the Trustee a resolution adopted by the Board of Directors of the Issuer approving such Affiliate Transaction and an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and shall not apply to:
(i) Permitted Investments and/or other Restricted Payments that are permitted by Section 4.7;
(ii) the payment of any fees or expenses incurred or paid by the Issuer and any Restricted Subsidiary in connection with the Transactions;
(iii) any employment or consulting agreement, director’s engagement agreement, employee benefit plan, officer or director indemnification agreement, severance arrangement, compensation or any similar arrangement entered into by the Issuer (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries in the ordinary course of business or approved in good faith by the relevant Board of Directors and payments pursuant thereto;
(iv) the payment of reasonable fees, reasonable out of pocket costs, compensation and other benefits (including retirement, health, stock, option, deferred compensation and other benefit plans), reimbursements and indemnities paid to, or provided on behalf of, or for the benefit of, former, current or future directors, officers, employees, managers and consultants of any direct or indirect parent of the Issuer, the Issuer or any of its Restricted Subsidiaries to the extent attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries;
(v) payments to any future, current or former employee, director, officer or consultant of Issuer (any direct or indirect parent thereof) or any of its Subsidiaries pursuant to a management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any health, disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers or consultants that are, in each case, approved by the Issuer in good faith;
(vi) transactions between or among the Issuer and one or more of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction) or between or among one or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction);
(vii) any transaction with a Person which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns, directly or indirectly, Equity Interests of or otherwise controls such Person
(viii) the issuance or sale of Capital Stock or other Equity Interests of any direct or indirect parent of the Issuer to the management of the Issuer, any of its Restricted Subsidiaries (or any direct or indirect parent thereof), or any of their respective subsidiaries pursuant to employee and severance arrangements in the ordinary course of business, or to any director, officer, employee or consultant (or their respective estates, investment funds, investment vehicles, spouses or former spouses) of the Issuer, any of the Issuer’s subsidiaries or any direct or indirect parent of the Issuer and the granting and performing of reasonable and customary registration rights;
(ix) any agreement, instrument or arrangement as in effect on the Escrow Release Date, and any transactions contemplated thereby and amendments or modifications thereto or replacements thereof, so long as any such amendment, modification or replacement is not disadvantageous in any material respect to the Holders, taken as a whole, as compared to the original agreement, instrument or arrangement in effect on the Escrow Release Date;
(x) transactions as to which the Issuer or any Restricted Subsidiary delivers to the Trustee a written opinion of an investment banking, accounting, consulting or appraisal firm of national standing in the United States to the effect that the transaction complies with clause (i) above or is fair, from a financial point of view or otherwise, to the Issuer or the Restricted Subsidiary that is a party thereto, as the case may be;
(xi) any contribution of capital to the Issuer or any Restricted Subsidiary otherwise permitted hereunder;
(xii) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary course of business or consistent in all material respects with past practice and which are (x) in the good faith determination of the Issuer (including by senior management or the board thereof), fair to the Issuer and its Restricted Subsidiaries or (y) on terms which that are no not less favorable favorable, taken as a whole, to the Company Issuer or such Restricted Subsidiary, than those that might reasonably have been obtained in a comparable arm’s-length transaction with an unaffiliated third party;
(xiii) sales or other dispositions of accounts receivable and related assets and interests therein of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Subsidiary in a Qualified Receivables Transaction and Permitted Investments and other transactions in connection with a Qualified Receivables Transaction and any other Standard Securitization Undertakings in connection with a Qualified Receivables Transaction;
(xiv) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Issuer and one or more Restricted Subsidiaries, on the one hand, and any other Person (including any direct or indirect parent of the Issuer) with which the Issuer and/or such Restricted Subsidiaries files a consolidated tax return; provided that any such tax sharing agreement, or payment pursuant thereto, shall be on customary terms to the extent attributable to the ownership or operation of the Issuer and the relevant Restricted Subsidiaries;
(xv) any merger, amalgamation, arrangement, consolidation or other reorganization of the Issuer with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating the Issuer in a new jurisdiction;
(xvi) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Issuer or any of its Restricted Subsidiaries; provided that such director abstains from voting as a director of the Issuer or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third partyany matter involving such other Person;
(2xvii) if such Affiliate Transaction any issuance or series sale of related Affiliate Transactions involves aggregate payments or Capital Stock (other consideration having a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing and a majority than Disqualified Stock) to Affiliates of the disinterested members Issuer and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect securityholders of the Issuer (and the performance of such agreements);
(xviii) (A) investments by Affiliates (other than any direct or indirect parent of the Issuer or any such parent’s subsidiaries) in securities of the Issuer or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred in connection therewith) so long as (x) the investment is being offered generally to investors on the same or more favorable terms and (y) the investment constitutes less than 10.0% of the proposed issue amount of such class of securities, and (B) transactions with Affiliates solely in their capacity as holders of Debt or Equity Interests of the Issuer or any of the Restricted 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;
(xix) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated, arranged or consolidated with the Issuer or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation and any amendment thereto (so long as any such amendment is not materially more disadvantageous to the Issuer or such Restricted Subsidiary in the good faith judgment of Senior Management or the Board of Directors of the Company shall have approved Issuer, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition, merger, amalgamation, arrangement or consolidation);
(xx) any lease entered into between the Issuer or any Restricted Subsidiary, as lessee, and any Affiliate Transaction and determined that such Affiliate Transaction complies with of the foregoing provisionsIssuer, oras lessor, in the event that there are no disinterested directorsordinary course of business, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary lease, sublease, license or between or among Restricted Subsidiaries;
(2) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09;
(3) any issuance sublicense of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made intellectual property in the ordinary course of business;
(4xxi) advances pledges of Equity Interests of Unrestricted Subsidiaries to officers, directors, employees and consultants who are not otherwise Affiliates support the Debt of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar year;such Unrestricted Subsidiary; and
(5xxii) the payment of reasonable directors’ fees, indemnification payments to and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements from and incentive arrangements transactions with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder);
(6) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);
(7) a provision or purchase of goods or services joint venture in the ordinary course of business; and
provided that such joint venture is not controlled by an Affiliate (8) any transactions undertaken pursuant to any contractual obligations in existence on other than a Restricted Subsidiary) of the Issue Date (or on the Closing Date and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respectIssuer.
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Sources: Indenture (WillScot Corp)
Limitation on Transactions with Affiliates. (a) The Company shall Holdings will not, and shall will not cause or permit any Restricted Subsidiary to, directly sell, lease or indirectlyotherwise transfer any property or assets to, conduct or purchase, lease or otherwise acquire any business property or enter intoassets from, renewor otherwise engage in any other transactions with, amend any of its Affiliates, except:
(i) (A) transactions among Holdings, the Company or conduct any Subsidiary permitted under the terms of this Indenture and (B) transactions or series of related transactions involving aggregate payments or consideration, when taken together, of less than $1,000,000;
(ii) a transaction (other than any Asset Sale or any Restricted Payment) on terms substantially as favorable to Holdings or such Subsidiary as would be obtainable by Holdings or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate; provided that, if the such transaction or series of related transactions involves aggregate consideration in excess of (including the purchase, sale, lease or exchange of any assets or the rendering of any servicei) with or for the benefit of any of their respective Affiliates (each, an “Affiliate Transaction”), unless:
(1) $1,000,000 such Affiliate Transaction, taken as a whole, is on terms which are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction on an arm’s-length basis with an unaffiliated third party;
(2) if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having transactions shall be approved by a Fair Market Value in excess of $5.0 million, such Affiliate Transaction is in writing Board Resolution and a majority resolution certified by an authorized officer of the disinterested members of AMC to have been duly adopted by the Board of Directors of AMC and to be in full force and effect on the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, or, in the event that there are no disinterested directors, the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms date of such Affiliate Transaction are faircertification, from and (ii) (A) $15,000,000, with respect to any transaction outside the ordinary course of business with AMC or any subsidiary of AMC other than the Muvico Group Entities, or (B) $75,000,000 otherwise, a financial point of view, favorable opinion shall be given as to the Company fairness to Holdings or the Restricted such Subsidiary involved in of such Affiliate Transaction, as the case may be; and
(3) if such Affiliate Transaction transaction or series of related Affiliate Transactions involves aggregate payments or other consideration having transactions issued by a Fair Market Value in excess of $15.0 million, such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply to:
(1) transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiariesnationally recognized investment bank;
(2iii) any Permitted Investment and any Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09[reserved];
(3iv) any issuance of Qualified Capital Stock of the Company, or other payments, awards or grants in cash, Qualified Capital Stock of the Company or otherwise, pursuant to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants who are not otherwise Affiliates of the Company and made in the ordinary course of businessOdeon Holdco Intercompany Loan;
(4v) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made Permitted Transactions;
(vi) payments in the ordinary course of business by Holdings and in an amount not the Subsidiaries pursuant to exceed $1.0 million in any calendar yeartax sharing agreements among Holdings and the Subsidiaries and their applicable respective Parent Entities on customary terms to the extent attributable to the ownership or operation by AMC of Holdings and the Subsidiaries, to the extent payments are permitted by Section 4.06;
(5vii) transactions contemplated by, and permitted under, the payment of reasonable 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 Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Intercompany Agreements;
(6viii) issuances and sales of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness)[reserved];
(7ix) a provision Restricted Payments (excluding, for the avoidance of doubt, Permitted Investments) permitted under Section 4.06 or purchase Investments made pursuant to clauses (m) and (q) of goods the definition of “Permitted Investments”;
(x) [reserved];
(xi) [reserved];
(xii) Affiliate repurchases of Indebtedness under the Term Loan Obligations (to the extent permitted under agreements governing the Term Loan Obligations) or services the Notes, and the holding of such Indebtedness and the payments and other related transactions in respect thereof;
(xiii) Permitted Existing Debt Retirements;
(xiv) the ordinary course cancellation of businessNotes pursuant to the Transaction Support Agreement; and
(8) xv) loans, advances and other transactions between or among Holdings or any transactions undertaken pursuant to any contractual obligations in existence Subsidiary, on the Issue Date one hand, and any Joint Venture (or regardless of the form of legal entity), on the Closing Date other, in which Holdings or any Subsidiary has invested (and entered into which Joint Venture would not be an Affiliate of Holdings or any Subsidiary but for Holdings’ or such Subsidiaries’ ownership of Equity Interests in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable Joint Venture) to the Company and the Restricted Subsidiaries in any material respect.extent otherwise permitted..
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Each of the Company shall and Holdings will not, and shall Holdings will not cause or permit any of its Restricted Subsidiary to, directly or indirectly, conduct any business or enter into, renew, amend or conduct any transaction or series of related transactions Subsidiaries (including the purchaseCompany) to, salemake any payment to, lease or exchange sell, lease, transfer or otherwise dispose of any of its properties or assets to, or the rendering of purchase any service) with property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of any of their respective Affiliates Holdings (each, an “Affiliate Transaction”), ) unless:
(1) such the Affiliate Transaction, taken as a whole, Transaction is on terms which that are no less favorable to the Company or such Holdings or the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that would be available have been obtained in a comparable transaction on an arm’s-length basis by the Company or Holdings or such Restricted Subsidiary with an unaffiliated third party;unrelated Person; and
(2) if such Holdings delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $5.0 million, a Board Resolution (or, if Holdings has no disinterested member, of the Parent) set forth in an Officer’s Certificate of Holdings (or the Parent) certifying that such Affiliate Transaction is in writing complies with this Section 4.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the foregoing provisions, Holdings (or, in the event that there are if Holdings has no disinterested directorsmember, of the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may beParent); and
(3b) if such with respect to any Affiliate Transaction or series of related Affiliate Transactions involves involving aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, an opinion as to the fairness to the Company or Holdings or such Affiliate Transaction is in writing and the Trustee has received a written opinion from an Independent Financial Advisor stating that the terms Restricted Subsidiary of such Affiliate Transaction are fair, from a financial point of viewview issued by an accounting, appraisal or investment banking firm of industry recognized standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Company or provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.13 shall not apply toprior paragraph:
(1) transactions with any employment agreement, employee benefit plan, officer or among director indemnification agreement or any similar arrangement entered into by the Company or Holdings or any of its Restricted Subsidiaries (including the Company) in the ordinary course of business and any Restricted Subsidiary or between or among Restricted Subsidiariespayments pursuant thereto;
(2) any Permitted Investment and any transactions between or among the Company or Holdings or its Restricted Payment or other payment or Investment permitted to be made pursuant to Section 4.09Subsidiaries (including the Company);
(3) any issuance transactions with a Person (other than an Unrestricted Subsidiary of Qualified Capital Stock Holdings) that is an Affiliate of the CompanyHoldings solely because Holdings owns, directly or through a Restricted Subsidiary, an Equity Interest in, or other paymentscontrols, awards or grants in cash, Qualified Capital Stock such Person;
(4) payment of the Company or otherwise, pursuant reasonable directors’ fees to employment arrangements or stock option plans for the benefit of employees, officers, directors, and consultants Persons who are not otherwise Affiliates of the Company and made in the ordinary course of business;
(4) advances to officers, directors, employees and consultants who are not otherwise Affiliates of the Company made in the ordinary course of business and in an amount not to exceed $1.0 million in any calendar yearParent or Holdings;
(5) any issuance of Equity Interests (other than Disqualified Stock) of Holdings to, or receipt of any contribution to the payment common equity capital of reasonable directors’ feesHoldings in respect of Equity Interests (other than Disqualified Stock) held by, 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 Affiliates of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including reasonable benefits thereunder)Holdings;
(6) issuances and sales Restricted Payments that do not violate the provisions of Qualified Capital Stock of the Company or the receipt of the proceeds of capital contributions in respect of Qualified Capital Stock (including from the proceeds of any Future ABRY Subordinated Indebtedness);this Indenture under Section 4.08; and
(7) a provision or purchase of goods or services in the ordinary course of business; and
(8) any transactions undertaken effected pursuant to any contractual obligations in existence on the Issue Date (or on the Closing Date Specified Management Agreement and entered into in connection with the Transactions), as the same may be amended, modified or replaced from time to time so long as such any amendment, modification or replacement of any such agreement (so long as such amendment or replacement is no less favorable not materially more disadvantageous to the Company and Holders of the Restricted Subsidiaries in any material respectNotes, taken as a whole).
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