Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless: (1) the terms of such Affiliate Transaction are (A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and (B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company; (2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and (3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries. (b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following: (1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary); (2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment; (3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof; (4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding; (5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and (6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 2 contracts
Sources: Indenture (Paxson Communications Corp), Indenture (Paxson Communications Corp)
Limitation on Transactions with Affiliates. (a) The Company Issuers shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, with any Holder (or for any Affiliate of such Holder) of 10% or more of any class of Capital Stock of the benefit of, Parent or with any Affiliate of the Company (Parent, an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company Issuer or such any Restricted Subsidiary, as the in each case may beinvolving consideration in excess of $15,000,000, and
(B) no except upon terms that are not materially less favorable to the Company Issuers or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-arm’s length transaction with a Person that is not such a Holder or an Affiliate Affiliate.
(b) The limitation set forth in Section 5.12(a) does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the Company;
disinterested directors of the Board of Directors of the Parent, or where no such disinterested directors exist, by unanimous approval of the directors of the Board of Directors of the Parent or (2B) if such Affiliate Transaction involves aggregate payments for which the Parent or value in excess of $1.0 million, the Company obtains and promptly any Restricted Subsidiary delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Company Parent or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between an Issuer and the any of its Restricted Subsidiaries or solely between Restricted Subsidiaries.;
(b3) Without regard to the foregoing limitationspayment of reasonable fees and compensation (including through the issuance of Capital Stock) to, the Company and indemnification and similar arrangements on behalf of, current, former or future directors, officers, employees or consultants of Parent or any Restricted Subsidiary may enter into or suffer to exist the following:of Parent;
(14) the issuance or sale of Capital Stock (other than Disqualified Stock) of an Issuer;
(5) any transaction Restricted Payments not prohibited by Section 5.09 and Investments constituting Permitted Investments;
(6) any contracts, instruments or series other agreements or arrangements in each case as in effect on the date of this Indenture, and any transactions between pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Company Issuers and one or more the Restricted Subsidiaries at the time executed than the original agreement or between two arrangements as in effect on the date of this Indenture;
(7) any employment, consulting, service or more termination agreement, or customary indemnification arrangements, entered into by an Issuer or any Restricted Subsidiaries Subsidiary with current, former or future officers and employees of the Parent or an Issuer or such Restricted Subsidiary and the payment of compensation to officers and employees of the Parent, an Issuer or any Restricted Subsidiary (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) 8) loans and advances to officers and employees of the Parent, an Issuer or any Restricted Subsidiary or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingbusiness;
(59) agreements in effect on transactions with a Person that is an Affiliate of the Issue Date Parent or an Issuer solely because the Parent or an Issuer, directly or indirectly, owns Capital Stock of, or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; or
(11) the entering into or amending of any tax sharing, allocation or similar agreement and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; andpayments thereunder.
(6c) sales Notwithstanding Section 5.12(a) and 5.12(b), any transaction or series of accounts receivable, related transactions covered by Section 5.12(a) and not covered by clauses (2) through (11) of Section 5.12(b) the aggregate amount of which exceeds $30,000,000 in value shall be approved or participations therein, determined to be fair in connection with any Receivables Facilitythe manner provided for in Section 5.12(b)(1)(A) or (B).
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (MPT Operating Partnership, L.P.), Ninth Supplemental Indenture (MPT Operating Partnership, L.P.)
Limitation on Transactions with Affiliates. (a) The Neither the Company shall notnor the Parent shall, and neither shall not they permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist exist, directly or indirectly, any transaction or series of related transactions (including including, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION")Parent, unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or any Restricted Subsidiary (other than a Restricted Entity so long as no Affiliate of the Parent (other than a Restricted Entity) shall beneficially own Capital Stock in such Restricted SubsidiaryEntity) unless (i) such transaction or series of related transactions are on terms, taken as the case may bea whole, and
(B) that are no less favorable to the Company Company, the Parent, or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person unrelated third parties that is are not Affiliates; (ii) with respect to any transaction or series of related transactions involving aggregate consideration equal to or greater than $5,000,000 (or the equivalent thereof in one or more foreign currencies), the Parent will deliver an Affiliate Officers' Certificate to the Trustee certifying that such transaction or series of the Company;
related transactions complies with clause (2i) if such Affiliate Transaction involves above; and (iii) with respect to any transaction or series of related transactions involving aggregate payments or value consideration in excess of $1.0 million10,000,000 (or the equivalent thereof in one or more foreign currencies), the Company obtains and promptly delivers to Parent will deliver the Trustee a resolution Officers' Certificates described in clause (ii) above, which will also certify that such transaction or series of its Board of Directors (including related transaction has been approved by a majority of the disinterested members Disinterested Directors of the Board of Directors) approving such Affiliate Transaction and certifying thatDirectors of the Parent, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, that the Company obtains Parent has obtained a written opinion from an Independent Financial Advisor independent financial expert certifying that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any financial terms of such transaction or series of transactions between related transactions, taken as a whole, are fair to the Company and one Company, the Parent, or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view: provided, that such loans this covenant shall not restrict (1) any transaction or series of related transactions between the Company and advances do the Parent, (2) any transaction or series of related transactions between either the Company or the Parent (as the case may be) and one or more of the Restricted Subsidiaries or between the Restricted Subsidiaries, (3) the Company or the Parent from paying reasonable and customary regular compensation and fees to directors of any Restricted Entity who are not exceed $1.0 million employees of any Restricted Entity, (4) the performance of the Parent's obligations under the Stockholders' Agreement, dated as of [ ], among the Parent and the Investors named therein, as amended and supplemented from time to any one employee and $5.0 million in the aggregate at any one time outstanding;
or (5) agreements in effect on the performance of the Company's obligations under the Investment and Stockholders' Agreement, dated as of October 31, 1997, among the Company, Davi▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ the Investors named therein, as amended; the Investment and Stockholders' Agreement, dated as of August 28, 1995, by and among the Company and the Investors named therein; the Non-Qualified Stock Option Agreement, dated August 4, 1997, between the Company and Rich▇▇▇ ▇▇▇▇▇▇; ▇▇d the Employment Agreement, dated August 4, 1997, between the Company and Rich▇▇▇ ▇▇▇▇▇▇, ▇▇ each case as amended through the Issue Date and Date; provided that any modifications, extensions amendments or renewals thereto that are modifications to the terms of transactions described in this clause (5) will be (x) no less favorable to the Company Parent or any Restricted Subsidiary the Company, as the case may be, than such agreement as those that could have been obtained in effect on an arm's length transaction with unrelated third parties who are not Affiliates and (y) approved by the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.Board of
Appears in 2 contracts
Sources: Supplemental Indenture (Pathnet Telecommunications Inc), Supplemental Indenture (Pathnet Telecommunications 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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) in all material respects that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person that is not an Affiliate of the Company;
unrelated third party, (2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 million, such transaction or series of related transactions has been approved by either (a) a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (b) the Audit Committee of the Board of Directors of the Company obtains by a majority of members thereof who do not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions and promptly (3) with respect to any transaction or series of related transactions involving aggregate value in excess of $10.0 million, the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate from a financial point of view; provided, however, that this provision shall not apply to: transactions and agreements in existence on the Company (other than a Restricted Subsidiary);
(2) Issue Date and any Restricted Payment permitted renewals, amendments, modifications and changes to be made pursuant such agreements which are not adverse in any material respect to Section 4.08 the Company; transactions between or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of among the Company or any of the Restricted Subsidiaries Subsidiaries; Restricted Payments or other transactions expressly permitted by this Indenture; compensation (including bonuses and equity compensation) paid to and other benefits (including retirement, health and other benefit plans, profit sharing plans, awards and transactions under stock incentive plans or management equity subscription agreements), severance agreements, and indemnification or insurance arrangements provided on behalf of officers, directors, managers, employees or consultants of the Company or any Restricted Subsidiary, in his each case in the ordinary course of business; the existence of, or her capacity as an officer the performance by the Company or director, so long as the Board any Restricted Subsidiary of Directors in good faith shall have approved its obligations under the terms thereof;
of, any stockholders’ agreement (4including any registration rights agreement or purchase agreement but excluding any management agreement related thereto) loans to which it is a party as of the Issue Date and advances to employees made any similar agreements which it may enter into thereafter; transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners, lessors or lessees of property (real or personal) or purchasers or sellers of goods or services, in each case in the ordinary course of business and consistent otherwise in compliance with the past practices terms of this Indenture which are fair to the Company or such and its Restricted SubsidiarySubsidiaries, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million on terms substantially similar to any one employee and $5.0 million those contained in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to similar contracts entered into by the Company or any Restricted Subsidiary than with unaffiliated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, on terms that are in the reasonable determination of the senior management of the Company, at least as favorable as might reasonably have been obtained at such time from an unaffiliated third party; the issuance of Qualified Capital Stock (including all warrants, options or other rights to acquire Qualified Capital Stock) of the Company; loans and advances to, and reimbursements of, officers, directors, managers and employees for business related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices and in compliance with all applicable laws; and the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any employment agreement to which it is a party as in effect on of the Issue DateDate and any renewals, amendments, modifications and changes to such agreements which are not adverse in any material respect to the Company, and any similar agreements which it may enter into thereafter, in each case in the ordinary course of business.; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 2 contracts
Sources: Consent Agreement (Blyth Inc), Supplemental Indenture (Blyth Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company or any Restricted Subsidiary unless (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would reasonably be obtained expected to be available in a comparable arm'stransaction in arm’s-length dealings with an unrelated third party, and (ii) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 25.0 million, the Company obtains and promptly delivers an Officers’ Certificate to the Trustee a resolution certifying that such transaction or series of its Board related transactions complies with clause (i) above and such transaction or series of Directors (including related transactions has been approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction Directors of the Company (and certifying thatapproved by a majority of the Independent Directors or, in its good faith judgmentthe event there is only one Independent Director, by such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted SubsidiariesDirector).
(b) Without regard Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the foregoing limitationsCompany (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries Subsidiaries, (iii) transactions pursuant to agreements existing on the Issue Date and any amendment to or between two extensions or more replacements thereof on terms not materially less favorable to the Company, (iv) Restricted Subsidiaries in the ordinary course Payments and Permitted Investments, (v) issuances of business, PROVIDED that no more than 5% equity of the total voting power of the Voting Stock Company, (on a fully diluted basisvi) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of transactions in which the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED delivers to the Trustee a letter from an independent financial advisor stating that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable transaction is fair to the Company or any such Restricted Subsidiary than from a financial point of view or meets the requirements of clause (i) of the preceding paragraph, (vii) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such agreement Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, (viii) any customary transaction with a Securitization Subsidiary effected as in effect on the Issue Date; and
(6) sales part of accounts receivable, a Qualified Securitization Financing or participations therein, Receivables Facility and any disposition of Securitization Assets or related assets in connection with any Receivables FacilityQualified Securitization Financing and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation, (ix) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not entered into in contemplation of such redesignation) and (x) any transaction or series of related transactions involving aggregate payments of $20.0 million or less.
Appears in 2 contracts
Sources: Indenture (Gray Television Inc), Indenture (Gray Television Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not enter, and shall not permit any of its Subsidiaries to enter, directly or indirectly, into any transaction or series of related transactions with any Affiliate of the Company (other than (x) the making of a Restricted Payment or Restricted Investment otherwise permitted by Section 4.10 or those transactions specifically permitted by Section 4.10(b), (y) transactions between or among Non-Recourse Subsidiaries of the Company or (z) transactions between or among the Company and its Subsidiaries (other than Non-Recourse Subsidiaries)) including, without limitation, any loan, advance or investment or any purchase, sale, lease or exchange of property or the rendering of any service, unless the terms of such transaction or series of transactions are set forth in writing and at least as favorable as those available in a comparable transaction in arms-length dealings from an unrelated Person; provided that (i) if any such transaction or series of related transactions (other than any purchase or sale of inventory in the ordinary course of business, but including entering into any long-term arrangement involving the purchase of granules or glass fiber from, or the provision of management services of the type currently provided under the Management Agreement by, an Affiliate of the Company, including ISP or a Subsidiary thereof) involves aggregate payments or other consideration in excess of $10,000,000, such transaction or series of related transactions shall be approved (and the value of any non-cash consideration shall be determined) by a majority of those members of the Board of Directors of the Company or such Subsidiary, as the case may be, having no personal stake in such business, transaction or transactions; and (ii) in the event that such transaction or series of related transactions (other than any purchase or sale of inventory in the ordinary course of business or other than purchases of granules or glass fiber from an Affiliate of the Company, including ISP or a Subsidiary thereof) involves aggregate payments or other consideration in excess of $35,000,000 (with the value of any non-cash consideration being determined by a majority of those members of the Board of Directors of the Company or such Subsidiary, as the case may be, having no personal stake in such business, transaction or transactions), the Company or such Subsidiary, as the case may be, shall have also received a written opinion from a nationally recognized investment banking firm that such transaction or series of related transactions is fair to the shareholders, in their capacity as such, of the Company or such Subsidiary from a financial point of view and such opinion has been delivered to the Trustee; provided further, in the event that each member of the Board of Directors of the Company or the Subsidiary, as the case may be, proposing to engage in a transaction or series of related transactions described in the preceding proviso has a personal stake in such business, transaction or transactions, the Company or such Subsidiary may enter into such transaction or series of transactions if the Company or such Subsidiary, as the case may be, shall have received the written opinion of a nationally recognized investment banking firm that the terms thereof, from a financial point of view, are fair to the shareholders of the Company or such Subsidiary, in their capacity as such (the determination as to the value of any non-cash consideration referred to in the preceding proviso to be made by such investment banking firm), and such opinion shall have been delivered to the Trustee.
(b) Section 4.12(a) shall not prevent the following:
(1) the purchase of granules from an Affiliate of the Company, including ISP or a Subsidiary of ISP, provided that (a) subject to Section 4.12(c), the price and other terms shall not be less favorable to the Company than those set forth in the Granules Contracts or (b) a nationally recognized investment banking firm or accounting firm has delivered a written opinion to the Company to the effect that either the terms thereof are fair to the Company from a financial point of view or are on terms at least as favorable to the Company as those available in comparable transactions in arms-length dealings from an unrelated third party;
(2) the continuance of the Management Agreement (including with an Affiliate of the Company other than ISP) (a) in accordance with its terms or on terms no less favorable to the Company than those contained in the Management Agreement or (b) on other terms provided that the Company shall have received the written opinion of a nationally recognized investment banking firm or accounting firm that either the terms thereof, from a financial point of view, are fair to the Company or are on terms at least as favorable to the Company as those available in comparable transactions in arms-length dealings from an unrelated Person;
(3) any transaction between the Company or a Subsidiary thereof and its own employee stock ownership or benefit plan;
(4) any transaction with an officer or director of the Company or any Subsidiary of the Company entered into in the ordinary course of business (including compensation or employee benefit arrangements with any such officer or director);
(5) any business or transactions with an Unrestricted Affiliate;
(6) borrowings by the Company or its Subsidiaries from Affiliates of the Company; provided that such loans are unsecured, are prepayable at any time without penalty, contain no restrictive covenants and the effective cost of borrowings thereunder do not exceed the interest rate then in effect from time to time under the Credit Agreement or any Refinancings thereof (or, if such agreement is not outstanding, under the unsecured bank debt of the Company);
(7) payments made pursuant to the Tax Sharing Agreement; or
(8) purchases made pursuant to the Glass Fiber Contract; provided that the terms of such contract are set forth in writing and are at least as favorable to the Company as those available in a comparable transaction in arms-length dealings with an unrelated Person.
(c) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly amend, modify or indirectlywaive any provision of the Tax Sharing Agreement, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property Granules Contracts or the rendering of Glass Fiber Contract in any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable manner which is significantly adverse to the Company or such Restricted Subsidiary, the holders of the Notes (it being understood that an extension or modification of any of the Granules Contracts (or any similar granules purchase contract) or the Glass Fiber Contract on terms at least as the case may be, and
(B) no less favorable to the Company as those available at the time of the extension or modification (or any such Restricted Subsidiary, as the case may be, than those that could be obtained new agreement) in a comparable arm'stransaction in arms-length transaction with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, dealings with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith unrelated Person shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable be deemed significantly adverse to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityHolders).
Appears in 2 contracts
Sources: Indenture (Building Materials Corp of America), Indenture (Building Materials Corp of America)
Limitation on Transactions with Affiliates. (a) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of any Property assets, property or services), other than as provided for, as of the rendering date of any service) this Indenture, in the Operative Agreements, with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION")Partnership, unless:
unless (1) such transaction or series of related transactions is between the Partnership and its Wholly Owned Restricted Subsidiaries or between two Wholly Owned Restricted Subsidiaries or (2) (a) such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company Partnership or such Restricted Subsidiary, as the case may be, than those that could be which would have been obtained in a comparable arm's-length transaction with a Person that is at such time from Persons who are not an Affiliate Affiliates of the Company;
Partnership or a Restricted Subsidiary and (2b) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments or value in excess of equal to or greater than $1.0 50 million, the Company obtains and promptly delivers Partnership shall have delivered an Officer’s Certificate to the Trustee certifying that such transaction or series of transactions complies with the preceding clause (a) and that such transaction or series of transactions has been approved by a resolution majority of its the Board of Directors of the General Partner (including a majority of the disinterested members of Disinterested Directors); provided, however, that this Section 10.11 will not restrict the Board of Directors) approving such Affiliate Transaction and certifying thatPartnership, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter or the General Partner from entering into or suffer to exist the following:
(1A) any transaction employment agreement, stock option agreement, restricted stock agreement or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries other similar agreement in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2B) any Restricted Payment transactions permitted to be made pursuant to Section 4.08 or any Permitted Investment;
by the provisions of this Indenture set forth in Sections 10.10 hereof; (3C) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made transactions in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with reinsuring the self-insurance programs or other similar forms of retained insurable risks of the Partnership or (D) any Receivables FacilityAccounts Receivable Securitization.
Appears in 2 contracts
Sources: Indenture (Amerigas Partners Lp), Indenture (Amerigas Finance Corp)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, with any Holder (or for any Affiliate of such Holder) of 10% or more of any class of Capital Stock of the benefit of, Parent or with any Affiliate of the Company (an "AFFILIATE TRANSACTION")Parent or any of its Restricted Subsidiaries, unless:
(1) the in each case involving consideration in excess of $2,500,000, except upon terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are not materially less favorable to the Company Parent or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm'sarm’s-length transaction with a Person that is not such a Holder or an Affiliate Affiliate.
(b) The limitation set forth in Section 10.12(a) does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the Company;
disinterested directors of the Board of Directors of the Parent or (2B) if such Affiliate Transaction involves aggregate payments for which the Parent or value in excess of $1.0 million, the Company obtains and promptly any Restricted Subsidiary delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Company Parent or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between the Parent and any of its Restricted Subsidiaries or solely between Restricted Subsidiaries;
(3) the payment of reasonable fees and compensation to, and indemnification and similar arrangements on behalf of, current, former or future directors of the Parent or any Restricted Subsidiary;
(4) the issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent;
(5) any Restricted Payments not prohibited by Section 10.9;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the date of this Indenture, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplemental thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Parent and the Restricted Subsidiaries.Subsidiaries at the time executed than the original agreement or arrangements as in effect on the date of this Indenture;
(b7) Without regard to any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the foregoing limitations, the Company Parent or any Restricted Subsidiary may enter into with current, former or suffer future officers and employees of the Parent or such Restricted Subsidiary and the payment of compensation to exist officers and employees of the following:
Parent or any Restricted Subsidiary (1) any transaction including amounts paid pursuant to employee benefit plans, employee stock option or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries similar plans), in each case in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) 8) loans and advances to officers and employees of the Parent or any Restricted Subsidiary or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingpractice;
(59) agreements in effect on transactions with a Person that is an Affiliate of the Issue Date Parent solely because the Parent, directly or indirectly, owns Capital Stock of or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; or
(11) the entering into or amending of any tax sharing, allocation or similar agreement and any modificationspayments thereunder.
(c) Notwithstanding Section 10.12(a) and 10.12(b), extensions any transaction or renewals thereto that are no less favorable series of related transactions covered by Section 10.12(a) and not covered by clauses (2) through (11) of Section 10.12(b):
(i) the aggregate amount of which exceeds $10,000,000 in value shall be approved or determined to be fair in the Company manner provided for in Section 10.12(b)(1)(A) or any Restricted Subsidiary than such agreement as in effect on the Issue Date(B); and
(6ii) sales the aggregate amount of accounts receivable, or participations therein, which exceeds $30,000,000 in connection with any Receivables Facilityvalue shall be determined to be fair in the manner provided for in Section 10.12(b)(1)(B).
Appears in 2 contracts
Sources: Third Supplemental Indenture (Sabra Health Care REIT, Inc.), First Supplemental Indenture (Sabra Health Care REIT, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"other than the Company or a Wholly Owned Subsidiary), unless:
(1a) the terms of such Affiliate Transaction aretransaction is set forth in writing;
(Ab) fair and reasonable to the Company such transaction or such Restricted Subsidiary, as the case may be, and
(B) series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm'sarm’s-length transaction with a Person that is not an Affiliate of the Company;Company or such Restricted Subsidiary; and
(c) with respect to a transaction or series of transactions involving aggregate payments by or to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of:
(1) $15.0 million but less than $25.0 million, the Board of Directors of the Company (including a majority of the disinterested members of such Board of Directors) approves such transaction or series of transactions and certifies that such transaction or series of transactions complies with clause (b) of this paragraph, as evidenced by a certified resolution delivered to the Trustee, or
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 25.0 million, ,
(A) the Company obtains receives from an independent, nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and promptly delivers subject matter of the transaction (or series of transactions) at issue, a written opinion that such transaction (or series of transactions) is fair, from a financial point of view, to the Trustee a resolution of its Company or such Restricted Subsidiary, and
(B) such Board of Directors (including a majority of the disinterested members of the Board of DirectorsDirectors of the Company) approving approves such Affiliate Transaction transaction or series of transactions and certifying that, in its good faith judgment, certifies that such Affiliate Transaction transaction or series of transactions complies with clauses clause (a)(1)(Ab) and (a)(1)(B) above; andof this paragraph, as evidenced by a certified resolution delivered to the Trustee. The preceding limitations of this Section 4.16 do not apply to:
(3a) if such Affiliate Transaction involves aggregate payments or value in excess the payment of $5.0 million, reasonable and customary regular fees to directors of the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to or any of its Restricted Subsidiaries who are not employees of the Company and the or any of its Restricted Subsidiaries.;
(b) Without regard indemnities of officers and directors of the Company or any Subsidiary consistent with such Person’s charter, bylaws and applicable statutory provisions;
(c) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and employee stock purchase and ownership plans approved by the Board of Directors of the Company;
(d) loans made in compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
(1) to the foregoing limitationsofficers, directors or employees of the Company or any Restricted Subsidiary may enter into approved by the Board of Directors of the Company, the net proceeds of which are used solely to purchase common stock of the Company in connection with a restricted stock or suffer employee stock purchase plan, or to exist exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the following:purchase price of such common stock or the exercise price of such stock options, or
(12) to refinance loans, together with accrued interest thereon, made pursuant to this clause (d);
(e) advances and loans made in compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to officers, directors and employees of the Company or any Subsidiary in the ordinary course of business (including, without limitation, non-cash loans for the purchase of joint interests in exploratory and developmental oil and gas prospects or other similar ventures offered by the Company), provided such loans and advances (excluding loans or advances made pursuant to the preceding clause (d)) do not exceed $2.0 million at any one time outstanding;
(f) any Restricted Payment permitted to be paid pursuant to Section 4.12;
(g) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED provided that no more than 510% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);; and
(2h) any Restricted Payment permitted to be made transaction or series of transactions pursuant to Section 4.08 any agreement or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director obligation of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 2 contracts
Sources: First Supplemental Indenture (Swift Energy Co), Second Supplemental Indenture (Swift Energy Co)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unlessIssuer involving aggregate payments or consideration in excess of £5.0 million unless such transaction or series of transactions is entered into in good faith and:
(1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'sarm’s-length transaction with a Person third parties that is are not an Affiliate of the CompanyAffiliates;
(2b) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value in excess of $1.0 greater than £10.0 million, the Company obtains and promptly delivers to the Trustee Issuer shall deliver a resolution of its Board of Directors (including set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the disinterested members Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Issuer’s Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3c) if such Affiliate Transaction involves aggregate payments in the case that there are no Disinterested Directors or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair with respect to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between involving aggregate payments or the Company and one transfer of assets or more Restricted Subsidiaries the provision of services, in each case having a value greater than £30.0 million, the Issuer shall deliver to the Trustee a written opinion of an accounting, appraisal, investment banking or between two advisory firm of international standing stating that the transaction or more Restricted Subsidiaries in series of transactions is fair to the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any Issuer or such Restricted Subsidiary is owned by an Affiliate from a financial point of view. Notwithstanding the Company foregoing, the restrictions set forth in this description will not apply to:
(other than a Restricted Subsidiaryi) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees, so long as the Issuer’s Board of Directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or payments to be fair consideration therefor;
(2ii) any Restricted Payment permitted to be made pursuant to Payments not prohibited by Section 4.08 or any the making of an Investment that is a Permitted Investment;
(3iii) agreements and arrangements existing on the date of this Indenture and any transactionamendment, including compensation and employee benefit arrangementsmodification or supplement thereto; provided that any such amendment, with an officer modification or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved supplement to the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do thereof is not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable more disadvantageous to the Company Holders in any material respect than the original agreement or any Restricted Subsidiary than such agreement arrangement as in effect on the Issue Date; and;
(6iv) any payments or other transactions pursuant to a tax sharing agreement between the Issuer and any other Person with which the Issuer files a consolidated tax return or with which the Issuer is part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Issuer’s Board of Directors;
(vi) the granting and performance of registration rights for the Issuer’s securities;
(vii) (x) issuances or sales of accounts receivableQualified Capital Stock of the Issuer or Deeply Subordinated Funding and (y) any amendment, waiver or participations therein, other transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Indenture;
(viii) transactions between or among the Issuer and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(ix) transactions with a Person that is an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary of the Issuer owns Capital Stock in such Person or solely because the Issuer or a Restricted Subsidiary of the Issuer has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(x) the payment of Management Fees; or
(xi) transactions to occur on or about the Issue Date in connection with any Receivables Facilitythe restructuring of the Towergate group (including actions pursuant to or contemplated by the scheme of arrangement between Towergate Finance plc and the scheme creditors referred to therein).
Appears in 2 contracts
Sources: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or a Wholly Owned Subsidiary), unless (i) such Restricted Subsidiary, as the case may be, and
(B) transaction or series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, and (2ii) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments by or value to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of (a) $1.0 million1,000,000 but less than $5,000,000, an Officer certifies that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by an Officer's Certificate delivered to the Trustee, (b) $5,000,000 but less than $20,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the such Board of Directors) approving approves such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between and certifies that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by a certified resolution delivered to the Trustee, or (c) $20,000,000, (1) the Company and one receives from an independent, nationally recognized investment banking firm or more Restricted Subsidiaries appraisal firm, in either case specializing or between two or more Restricted Subsidiaries having a specialty in the ordinary course of business, PROVIDED that no more than 5% type and subject matter of the total voting power transaction (or series of the Voting Stock transactions) at issue, a written opinion that such transaction (on or series of transactions) is fair, from a fully diluted basis) financial point of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted view, to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted SubsidiarySubsidiary and (2) the Board of Directors (including a majority of the disinterested members of such Board of Directors) approves such transaction or series of transactions and certifies that such transaction or series of transactions complies with clause (i) of this paragraph, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable evidenced by a certified resolution delivered to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityTrustee.
Appears in 1 contract
Sources: Indenture (Stone Energy Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
unless (1i) the terms of such Affiliate Transaction are
are (A) fair set forth in writing and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
, (2ii) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million10,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving approves such Affiliate Transaction and certifying thatand, in its good faith judgment, believes that such Affiliate Transaction complies with clauses clause (a)(1)(Ai) of this paragraph as evidenced by a Board Resolution promptly delivered to the Trustee and (a)(1)(B) above; and
(3iii) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million25,000,000, the Company obtains a written opinion from an Independent Financial Advisor Appraiser to the effect that the transaction such Affiliate Transaction is fair fair, from a financial point of view, to the Company and or such Restricted Subsidiary, as the Restricted Subsidiariescase may be.
(b) Without regard to Notwithstanding the foregoing limitationslimitation, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1i) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED Subsidiaries; provided that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2ii) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment4.06;
(3iii) any transactionissuance of securities, including compensation and employee benefit or other payments, awards or grants in securities or otherwise pursuant to, or the funding of, employment arrangements, with an officer pension plans, stock options and stock ownership plans approved by the Board of Directors;
(iv) the payment of reasonable fees to directors of the Company or director such Restricted Subsidiary who are not employees of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiary;
(4v) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED provided that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million 5,000,000 in the aggregate at any one time outstanding;
(5vi) agreements in effect on the Issue Date and any modifications, extensions transaction or renewals thereto that are no less favorable to series of transactions between the Company or any Restricted Subsidiary than and any of their joint ventures, provided that (x) such agreement transaction or series of transactions is in the ordinary course of business between the Company or such Restricted Subsidiary and such joint venture and is consistent with the past practices of the Company and the Restricted Subsidiaries with respect to their joint ventures, (y) if such transaction or series of transactions constitutes an Investment by the Company, such Restricted Subsidiary or such joint venture, the other equity investors in such joint venture (A) participate in such Investment on the same basis as the Company or such Restricted Subsidiary, (B) have their interests in such joint venture diluted to the extent such investors elect not to so participate in such Investment or (C) individually beneficially own 10% or less of the equity interests in such joint venture and (z) such joint venture is engaged in a Related Business; and
(vii) any transaction or series of transactions between the Company or any Restricted Subsidiary and SMI America, Inc. or any of its affiliates pursuant to the terms of the Sumitomo Securities Purchase Agreement and any documents relating thereto, as such Agreement and documents are in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Sources: Indenture (LTV Steel Co Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including including, but not limited to, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary), as the case may be, and
unless (Bi) such transaction or series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, than Subsidiary that those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, and (2ii) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments by or value to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of (A) $1.0 million but less than $5.0 million, an officer of the Company, in his good faith judgment, believes such transaction or series of transactions complies with clause (i) of this paragraph as evidenced by an Officer's Certificate delivered to the Trustee, (B) $5.0 million but less than $15.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors of the Company (including a majority of the disinterested members of the Board of DirectorsDirectors of the Company) approving approves such Affiliate Transaction and certifying thattransaction or series of transactions and, in its good faith judgment, believes that such Affiliate Transaction transaction or series of transactions complies with clauses clause (a)(1)(Ai) and of this paragraph as evidenced by a certified resolution delivered to the Trustee or (a)(1)(BC) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 15.0 million, (1) the Company obtains receives from an independent, nationally recognized investment banking firm or appraisal firm, in either case specializing or having a speciality in the type and subject matter of the transaction (or series of transactions) at issue, a written opinion that such transaction (or series of transaction) is fair, from an Independent Financial Advisor that the transaction is fair a financial point of view, to the Company or such Restricted Subsidiary and (2) the Restricted SubsidiariesBoard of Directors of the Company (including a majority of the disinterested members of the Board of Directors of the Company) approves such transaction or series of transactions and, in its good faith judgment, believes that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by a certified resolution delivered to the Trustee.
(b) Without regard The limitations of the preceding subsection do not apply to:
(i) the payment of reasonable and customary regular fees to directors of the foregoing limitationsCompany or any of its Restricted Subsidiaries who are not employees of the Company or any of its Restricted Subsidiaries;
(ii) indemnities of officers and directors of the Company or any Subsidiary consistent with such Person's bylaws and applicable statutory provisions;
(iii) the Company's and its Restricted Subsidiaries' employee compensation and other benefit arrangements;
(iv) loans made (A) to officers, directors or employees of the Company or any Restricted Subsidiary may enter into approved by the Board of Directors (or suffer by a duly authorized officer), the proceeds of which are used solely to exist purchase common stock of the following:Company in connection with a restricted stock or employee stock purchase plan, exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the exercise price of such stock options, or (B) to refinance loans, together with accrued interest thereon, made pursuant to this clause (iv);
(1v) any transaction or series advances and loans to officers, directors and employees of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries any Subsidiary in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that provided -------- such loans and advances do not exceed $1.0 2.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;; or
(5vi) agreements Investments in effect on the Issue Date and any modifications, extensions or renewals thereto that Unrestricted Subsidiaries which are no less favorable deemed to the Company or any be Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityPayments under Section 4.04.
Appears in 1 contract
Sources: Indenture (Wiser Marketing Co)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless (Ba) such transaction or series of related transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million1,000,000, the Company obtains and promptly delivers an Officers' Certificate to the Trustee a resolution Noteholders certifying that such transaction or series of its Board related transactions complies with clause (a) above and such transaction or series of Directors (including transactions has been approved by a majority of the disinterested members board of directors of the Board Company, (c) with respect to any transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $5.0 million2,000,000, such transaction or series of related transactions has been approved by the Disinterested Directors of the Company obtains (or in the event there is only one Disinterested Director, by such Disinterested Director) and (d) with respect to any transaction or series of related transactions involving aggregate payments in excess of $5,000,000, such transaction or series of related transactions has been approved by the Disinterested Directors of the Company (or in the event there is only one Disinterested Director, by such Disinterested Director) and the Company delivers to the Noteholders a written opinion from of an Independent Financial Advisor investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; provided, however, that the provision with respect to exist the following:
clause (1d) above shall not apply to (A) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made entered into in the ordinary course of business and consistent (including compensation or employee benefit arrangements with the past practices any officer or director of the Company Company) or such Restricted Subsidiary(B) any agreements, transactions or series of related transactions in existence on the date of this Agreement and any renewal or extension thereof under substantially the same terms as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityoriginal terms.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (Chase Venture Capital Associates L P)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any Restricted Subsidiary toto enter into, amend or suffer to exist, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company Parent or any Restricted Subsidiary unless (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of related transactions are on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company Parent, or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable an arm's-length transaction with a Person that is unrelated third parties who are not an Affiliate of the Company;
Affiliates, (2ii) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers with respect to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between involving aggregate consideration equal to or greater than (euro)5.0 million (or, to the Company and one extent not denominated in Euros, the Euro equivalent thereof), Parent shall deliver an Officer's Certificate to the Trustee certifying that such transaction or more Restricted Subsidiaries series of related transactions complies with clause (i) above, (iii) with respect to any transaction or between two series of related transactions including aggregate consideration in excess of (euro)10.0 million (or, to the extent not denominated in Euros, the Euro equivalent thereof), Parent shall deliver the Officer's Certificate described in clause (ii) above which shall also certify that such transaction or more Restricted Subsidiaries in the ordinary course series of business, PROVIDED that no more than 5% related transactions has been approved by a majority of the total voting power Disinterested Members of the Voting Stock (on Management Board or that Parent has obtained a fully diluted basis) written opinion from a nationally recognized U.S. investment banking firm certifying that such transaction or series of any such Restricted Subsidiary related transactions is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted fair to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company Parent or such Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view; and (iv) with respect to any transaction or series of related transactions including aggregate consideration in excess of (euro)15.0 million (or, to the extent not denominated in Euros, the Euro equivalent thereof), Parent shall deliver the Officer's Certificate described in clause (ii) above which shall also certify that Parent has obtained a written opinion from a nationally recognized U.S. investment banking firm certifying that such loans transaction or series of related transactions is fair to Parent or such Restricted Subsidiary, as the case may be, from a financial point of view provided, however, that this provision will not restrict (1) any transaction or series of related transactions among Parent and advances do not exceed $1.0 million Restricted Subsidiaries or among Restricted Subsidiaries, (2) Investments in Qualified Capital Stock of Parent by any Person, including an Affiliate of Parent, (3) any other transaction pursuant to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect contractual arrangements existing on the Issue Date date of this Indenture (the "Existing Affiliate Agreements"), (4) Parent from paying reasonable and any modifications, extensions or renewals thereto that are no less favorable customary regular compensation and fees to the Company directors of Parent or any Restricted Subsidiary than such agreement as who are not employees of Parent or any Restricted Subsidiary, (5) Parent or any Restricted Subsidiary from making any Restricted Payment in effect on the Issue Date; and
compliance with Section 9.10, or (6) sales Parent from entering into any customary and reasonable employment and consulting agreements which have been approved by a majority of accounts receivable, the Disinterested Members of the Management Board or participations therein, (7) transactions between Parent or any Restricted Subsidiary and any holder of less than 10.0% of the outstanding Voting Stock of Parent entered into in connection with any Receivables Facilitythe ordinary course of business.
Appears in 1 contract
Sources: Senior Secured Euro Notes Indenture (Netia Holdings Sa)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guaranty with, or for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTIONAffiliate Transaction"), unlessexcept for:
(1i) the Affiliate Transactions that, together with all related Affiliate Transactions, have an aggregate value of not more than $1.0 million; provided, that such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time by the Company or such Restricted Subsidiary on an arm's-length transaction with basis from a Person that is not an Affiliate of the Company;Company or such Restricted Subsidiary; 50
(2ii) if such Affiliate Transaction involves Transactions that, together with all related Affiliate Transactions, have an aggregate payments or value in excess of not more than $1.0 5.0 million; provided, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors that (including 1) a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate Managers of the Company (other than or, if none, a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director disinterested committee appointed by the Managers of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or directorfor such purpose, so long as the Board of Directors determine that such transactions are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such agreement as in effect time by the Company or such Restricted Subsidiary on an arm's-length basis from a Person that is not an Affiliate of the Issue DateCompany or such Restricted Subsidiary and (2) prior to entering into such transaction the Company shall have delivered to the Trustee an Officers' Certificate certifying to such effect; andor
(6iii) sales Affiliate Transactions for which the Company delivers to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary from a financial point of accounts receivableview issued by an accounting, appraisal or participations thereininvestment banking firm of national standing.
(b) Notwithstanding the foregoing, the following will be deemed not to be Affiliate Transactions: (i) transactions between or among the Issuers and/or any or all of the Subsidiary Guarantors; (ii) Restricted Payments permitted by Section 4.7; and (iii) reasonable and customary compensation paid to officers, employees or consultants of PGP, the Company or any Restricted Subsidiary, in connection with each case for services provided to the Company or any Receivables FacilityRestricted Subsidiary, as determined in good faith by the Managers or senior executives of the Company.
Appears in 1 contract
Sources: Indenture (Peninsula Gaming Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer permit to exist any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate of the Company (an "AFFILIATE TRANSACTION"Transaction”), other than Affiliate Transactions described in Section 4.14(b), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiaryis on terms, taken as the case may bea whole, and
(B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or the relevant Subsidiary of the Company than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Subsidiary of the Company and an unrelated Person; and
(2) the Company delivers to the Trustee
(a) with respect to any Restricted Affiliate Transaction involving aggregate consideration in excess of $1.0 million, a resolution of the Board of Directors of the Company that states that such Board of Directors has determined that such Affiliate Transaction complies with this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the Disinterested Members of such Board of Directors, if there are any such Disinterested Members; and
(b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $5.0 million, or in excess of $1.0 million and not approved by a majority of the Disinterested Members of the Board of Directors of the Company, a favorable opinion from an Independent Financial Advisor as to the fairness of such Affiliate Transaction to the Company or the relevant Subsidiary of the Company, as the case may be, from a financial point of view.
(b) The restrictions set forth in Section 4.14(a) do not apply to
(1) transactions exclusively between or among the Company and/or one or more of its Subsidiaries; provided, in each case, such transaction is not otherwise prohibited by this Indenture and that no Affiliate of the Company (other than another Subsidiary of the Company) owns Capital Stock in any such Subsidiary of the Company;
(2) any agreement in effect on the Issue Date as in effect on the Issue Date or as thereafter amended in a manner which is, taken as a whole, in the good faith judgment of the Board of Directors of the Company not materially less favorable to the Company or such Subsidiary of the Company as the original agreement as in effect on the Issue Date;
(3) any employment, compensation, benefit or indemnity agreements, arrangements or plans in respect of any officer, director, employee or consultant of the Company or any of its Subsidiaries entered into in the ordinary course of business and approved by the Board of Directors of the Company;
(4) loans and advances permitted by clause (5) of the definition of Permitted Investments;
(5) the issuance and sale of Qualified Capital Stock; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityRestricted Payments permitted by Section 4.10.
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless such transaction or series of related transactions is entered into in good faith and in writing and (Ba) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million500,000, the Company obtains delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above or such transaction or series of related transactions is approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and promptly (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $1 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction transactions or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter from a financial point of view; provided, however, that this provision shall not apply to (i) compensation and employee benefit arrangements with any officer or director of the Company, including under any stock option or stock incentive plans, entered into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% ; (ii) any transaction permitted as a Restricted Payment pursuant to Section 1009; (iii) the payment of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate customary fees to directors of the Company and its Restricted Subsidiaries; (other than a Restricted Subsidiary);
(2iv) any Restricted Payment permitted to be made pursuant to Section 4.08 or transaction with any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director member of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved of the terms thereof;
Company involving indemnification arrangements; and (4v) loans and or advances to employees made officers of the Company in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not to exceed $1.0 million to any one employee and $5.0 1 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycalendar year.
Appears in 1 contract
Sources: Exhibit (Autobahn Inc)
Limitation on Transactions with Affiliates. (a) The Company shall Parent Guarantor will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), Parent Guarantor or any Restricted Subsidiary’s Affiliate involving aggregate payments or consideration in excess of €5 million unless:
(1i) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-arm’s length transaction with third parties that are not Affiliates (as determined in good faith by the Board of Directors or a Person that is not an Affiliate member of senior management of the CompanyParent Guarantor);
(2ii) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value in excess of $1.0 greater than €20 million, the Company obtains and promptly delivers to the Trustee Parent Guarantor will deliver a resolution of its Board of Directors (including set out in an Officer’s Certificate to the Trustee) certifying that such transaction complies with clause (i) above and that the fairness of such transaction has been approved by a majority of the disinterested members Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Parent Guarantor’s Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3iii) if such Affiliate Transaction involves in the case that there are no Disinterested Directors or with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value in excess of $5.0 greater than €75 million, the Company obtains Parent Guarantor will obtain a written opinion from of an Independent Financial Advisor accounting, appraisal, investment banking or advisory firm of international standing, or other recognized independent expert of international standing with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of transactions is (A) fair to the Company and the Parent Guarantor or such Restricted SubsidiariesSubsidiary from a financial point of view taking into account all relevant circumstances or (B) on terms not less favorable than might have been obtained in a comparable transaction at such time on an arm’s length basis from a Person who is not an Affiliate.
(b) Without regard to Notwithstanding the foregoing limitationsforegoing, the Company restrictions set forth in paragraph (a) of this Section 4.10 will not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees (as determined in good faith by the Board of Directors or a member of senior management of the Parent Guarantor);
(ii) any employment agreement, collective bargaining agreement, consultant, employee benefit arrangements with any employee, consultant, officer or director of the Parent Guarantor or any Restricted Subsidiary may enter Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into or suffer to exist in the following:ordinary course of business;
(1iii) any transaction Restricted Payments not prohibited by Section 4.06 and Permitted Investments;
(iv) transactions pursuant to, or series contemplated by any agreement or arrangement in effect on the Issue Date and transactions pursuant to any amendment, modification, supplement or extension thereto; provided that any such amendment, modification, supplement or extension to the terms thereof is not materially more disadvantageous to the holders of the Notes than the original agreement or arrangement as in effect on the Issue Date (as determined in good faith by the Board of Directors or a member of senior management of the Parent Guarantor);
(v) transactions between with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(vi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and one otherwise in compliance with the terms of this Indenture that are fair to the Parent Guarantor or more the Restricted Subsidiaries or between two are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person, in each case, as determined in good faith by the Board of Directors or more a member of senior management of the Parent Guarantor;
(vii) the payment of reasonable fees and indemnities to employees, officers and directors of the Parent Guarantor and its Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2viii) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted InvestmentManagement Advances;
(3ix) any transaction, including compensation transaction effected as part of or in connection with a Qualified Securitization Financing;
(x) transactions between or among the Parent Guarantor and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer between or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such among Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue DateSubsidiaries; and
(6xi) issuances or sales of accounts receivable, or participations therein, in connection with any Receivables FacilityQualified Capital Stock of the Parent Guarantor.
Appears in 1 contract
Sources: Indenture (Elster Group SE)
Limitation on Transactions with Affiliates. (a) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of any Property assets, property or services), other than as provided for, as of the rendering date of any service) this Indenture, in the Operative Agreements, with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION")Partnership, unless:
unless (1) such transaction or series of related transactions is between the Partnership and its Wholly Owned Restricted Subsidiaries or between two Wholly Owned Restricted Subsidiaries or (2) (a) such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company Partnership or such Restricted Subsidiary, as the case may be, than those that could be which would have been obtained in a comparable arm's-length transaction with a Person that is at such time from Persons who are not an Affiliate Affiliates of the Company;
Partnership or a Restricted Subsidiary and (2b) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments or value in excess of equal to or greater than $1.0 50 million, the Company obtains and promptly delivers Partnership shall have delivered an Officer’s Certificate to the Trustee certifying that such transaction or series of transactions complies with the preceding clause (a) and that such transaction or series of transactions has been approved by a resolution majority of its the Board of Directors of the General Partner (including a majority of the disinterested members of Disinterested Directors); provided, however, that this Section 10.11 will not restrict the Board of Directors) approving such Affiliate Transaction and certifying thatPartnership, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter or the General Partner from entering into or suffer to exist the following:
(1A) any transaction employment agreement, stock option agreement, restricted stock agreement or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries other similar agreement in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2B) any Restricted Payment transactions permitted to be made pursuant to Section 4.08 or any Permitted Investment;
by the provisions of this Indenture set forth in Sections 10.10 hereof, (3C) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made transactions in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with reinsuring the self-insurance programs or other similar forms of retained insurable risks of the Permitted Business operated by the Partnership or (D) any Receivables FacilityAccounts Receivable Securitization.
Appears in 1 contract
Sources: Indenture (Amerigas Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business enter into, renew, amend or enter into or suffer to exist extend any transaction or series of transactions (including including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets or the rendering of any service) service with, or for the benefit of, any Affiliate of the Company or any beneficial owner of 5% or more of any class of the Company's Capital Stock at any time outstanding (an "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1i) such transaction is among the terms of such Affiliate Transaction are
Company and Restricted Subsidiaries or (ii) (A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) transaction is on terms that are no less favorable to the Company Company, or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is third parties who are not Interested Persons and (B)(1) with respect to any transaction or series of related transactions involving an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million500,000, the Company obtains delivers an Officer's Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (A) above; and promptly (2) with respect to any transaction or series of related transactions involving aggregate value in excess of $2,500,000, either (i) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the board of directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (ii) the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; and (3) with respect to exist the following:
(1) any transaction or series of transactions between involving aggregate value in excess of $10,000,000 the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% conditions of the total voting power type of transaction or series of related transactions for which an opinion is required stating that the Voting Stock (on a fully diluted basis) transaction or series of any such Restricted Subsidiary related transactions is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted fair to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view; provided, however, that such loans this covenant will not restrict the Company from (y) paying reasonable compensation and advances do not exceed $1.0 million fees to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to directors of the Company or any Restricted Subsidiary than such who are not employees of the Company or any Restricted Subsidiary and (z) entering into the Stockholders Agreement or any other agreement as in effect on with the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityparties to the Stockholders 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 the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company or of a Restricted Subsidiary (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary, as ) or any officer or director of the case may be, and
Company or any Restricted Subsidiary unless such transaction or series of related transactions is entered into in good faith and in writing and (Ba) such transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length transaction dealings with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) unrelated third party and (a)(1)(Bb) above; and
(3) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $5.0 million, the Company obtains delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with the requirements of this Section 10.15 and, with respect to any transaction or series of related transactions involving aggregate value in excess of $10.0 million, either (i) such transaction or series of transactions has been approved by a majority of the Board of Directors of the Company, including a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (ii) the Company delivers to the Trustee a written opinion from of an Independent Financial Advisor stating that the transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view. The requirements of this Section 10.15 shall not apply to (i) any transaction with an officer, director or employee of the Company entered into in the ordinary course of business (including compensation and employee benefit arrangements with any officer or director of the Restricted Subsidiaries.
Company, including under any stock option or stock incentive plans); PROVIDED that such transaction has been approved in the manner described in clause (b) Without regard above if such transaction would, pursuant to clause (b) above, require such approval, (ii) the foregoing limitations, payment of reasonable and customary compensation and fees to directors of the Company or any Restricted Subsidiary may enter into who are not employees of the Company or suffer to exist any Restricted Subsidiary, (iii) the following:
payment of dividends otherwise in compliance with Section 10.14, (1iv) any transaction indemnification agreements for the benefit of officers, directors and employees, (v) transactions with or series of transactions between among the Company and one or more any Restricted Subsidiaries Subsidiary or between two or more among Restricted Subsidiaries in the ordinary course of businessSubsidiaries, PROVIDED that so long as no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company Person (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to which would otherwise be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transactionan Affiliate, including compensation and employee benefit arrangements, with an officer or director of the Company or a Restricted Subsidiary has any of the Restricted Subsidiaries direct or indirect interest in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or any such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to (vi) any one employee and $5.0 million transaction with Affiliates in the aggregate at any one time outstanding;
(5) agreements in effect existence on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
, and (6vii) sales leases of accounts receivable, property or participations therein, equipment or other agreements entered into in connection with any Receivables Facilityan Asset Acquisition with Persons that were not Affiliates, officers or directors of the Company or a Restricted Subsidiary immediately prior to such Asset Acquisition.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), Issuer or any Restricted Subsidiary’s Affiliate involving aggregate payments or consideration in excess of $5,000,000 unless:
(1i) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-arm’s length transaction with third parties that are not Affiliates (as determined in good faith by the board of directors or a Person that is not an Affiliate member of senior management of the CompanyIssuer);
(2ii) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value in excess of greater than $1.0 million30,000,000, the Company obtains and promptly delivers to the Trustee Issuer will deliver a resolution of its Board board of Directors directors (including set out in an Officer’s Certificate to the Trustee) certifying that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the disinterested members Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Board Issuer’s board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) abovedirectors; and
(3iii) if such Affiliate Transaction involves in the case that there are no Disinterested Directors or with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value in excess of greater than $5.0 million60,000,000, the Company obtains Issuer will obtain a written opinion from addressed to the Issuer or its board of directors of an Independent Financial Advisor accounting, appraisal, investment banking or advisory firm of international standing, or other recognized independent expert of international standing with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of transactions is (A) fair to the Company and the Issuer or such Restricted SubsidiariesSubsidiary from a financial point of view or (B) on terms, taken as a whole, not less favorable than could have been obtained in a comparable transaction at such time on an arm’s length basis from a Person who is not an Affiliate.
(b) Without regard to Notwithstanding the foregoing limitationsforegoing, the Company restrictions set forth in this description will not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees (as determined in good faith by the board of directors or a member of senior management of the Issuer);
(ii) any employment agreement, collective bargaining agreement, consultant, employee benefit arrangements with any employee, consultant, officer or director of the Issuer or any Restricted Subsidiary may enter Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into or suffer to exist in the following:ordinary course of business;
(1iii) any transaction Restricted Payments not prohibited by Section 4.06 and Permitted Investments;
(iv) transactions pursuant to, or series contemplated by any agreement or arrangement in effect on the Issue Date and transactions pursuant to any amendment, modification, supplement or extension thereto; provided that (A) any such amendment, modification, supplement or extension to the terms thereof is not materially more disadvantageous to the holders of the Notes than the original agreement or arrangement as in effect on the Issue Date or (B) in the case of the Management Agreement, such amendment, modification, supplement or extension to the terms thereof is approved by the Disinterested Directors of the Issuer’s Board of Directors as in the interest of the Issuer;
(v) transactions between with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company Issuer solely because the Issuer owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(vi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and one otherwise in compliance with the terms of this Indenture that are fair to the Issuer or more the Restricted Subsidiaries or between two are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person, in each case, as determined in good faith by the board of directors or more a member of senior management of the Issuer;
(vii) loans or advances to directors, officers, employees or consultants in the ordinary course of business in accordance with the past practices of the Issuer or its Restricted Subsidiaries, but in any event not to exceed $5,000,000 in the aggregate outstanding at any one time outstanding;
(viii) the payment of reasonable fees and indemnities to employees, officers and directors of the Issuer and its Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% ;
(ix) any issuance of Redeemable Capital Stock of the total voting power Issuer to Affiliates of the Voting Issuer which is permitted under Section 4.04;
(x) the granting and performance of registration rights for the Issuer’s securities;
(xi) (A) issuances or sales of Qualified Capital Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company Issuer or Deeply Subordinated Funding and (B) any amendment, waiver or other than transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Indenture;
(xii) Management Advances;
(xiii) any transaction effected as part of or in connection with a Qualified Securitization Financing;
(xiv) transactions between or among the Issuer and the Restricted SubsidiarySubsidiaries or between or among Restricted Subsidiaries;
(xv) transactions with any Permitted Holder or Affiliate which is a financial institution (acting in its capacity as a financial institution);
(2xvi) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries Transactions, the use of proceeds from the Offering as described in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;Offering Memorandum; and
(4xvii) loans with respect to real property identified in this offering memorandum, rental payments and advances to employees made expenses for real property and rental payments and expenses for real property in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitybusiness.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTIONAffiliate Transaction")) if such Affiliate Transaction or series of Affiliate Transactions involves aggregate consideration in excess of US$5.0 million, unless:
(1i) the terms of such Affiliate Transaction are:
(A) set forth in writing,
(B) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(BC) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;, and
(2ii) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 US$10.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including at least a majority of the disinterested members of the Board of Directors) approving approves such Affiliate Transaction and certifying thatand, in its good faith judgment, determines that such Affiliate Transaction complies with clauses (a)(1)(Aa)(i)(B) and (a)(1)(BC) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains this paragraph as evidenced by a written opinion from an Independent Financial Advisor that the transaction is fair Board Resolution promptly delivered to the Company and the Restricted SubsidiariesTrustee.
(b) Without regard to Notwithstanding the foregoing limitationslimitation, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1i) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries not otherwise prohibited by any provisions of this Indenture (excluding, for greater certainty, the provisions described under this Section 4.14) or between two or more Restricted Subsidiaries in the ordinary course of businessSubsidiaries, PROVIDED provided that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2i) any Restricted Payment permitted to be made pursuant to Section 4.08 4.10 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guaranty with, or for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTION"), unlessexcept for:
(1i) the Affiliate Transactions that, together with all related Affiliate Transactions, have an aggregate value of not more than $1,000,000; PROVIDED, that such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time by the Company or such Restricted Subsidiary on an arm's-length transaction with basis from a Person that is not an Affiliate of the CompanyCompany or such Restricted Subsidiary;
(2ii) if such Affiliate Transaction involves Transactions that, together with all related Affiliate Transactions, have an aggregate payments or value in excess of not more than $1.0 million5,000,000; PROVIDED, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including that a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate Directors of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors determines that such transactions are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such agreement as in effect time by the Company or such Restricted Subsidiary on an arm's-length basis from a Person that is not an Affiliate of the Issue DateCompany or such Restricted Subsidiary; andor
(6iii) sales Affiliate Transactions for which the Company delivers to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary from a financial point of accounts receivableview issued by an accounting, appraisal or participations thereininvestment banking firm of national standing.
(b) Notwithstanding the foregoing, in connection with the following will be deemed not to be Affiliate Transactions: (i) transactions between or among the Company and/or any Receivables Facilityor all of the Subsidiary Guarantors, and (ii) Restricted Payments permitted by Section 4.7 (including, without limitation, transactions contemplated by the Casino Consulting and Management Agreement dated as of December 11, 1992, as amended, between the Company and CRC).
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 any business or enter into into, renew or suffer to exist extend any transaction with any of their respective Affiliates or series any beneficial holder of transactions (including 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc., including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property or property, the rendering of any service) with, or for the benefit ofmaking of any guarantee, any Affiliate of the Company (an "AFFILIATE TRANSACTION")loan, unless:
(1) advance or Investment, either directly or indirectly, unless the terms of such Affiliate Transaction are
(A) fair and reasonable to transaction are at least as favorable as the terms that could be obtained at such time by the Company or such Restricted Subsidiary, as the case may be, and
in a comparable transaction made on an arms'-length basis with a Person that is not such an Affiliate; provided, however, that (Bx) no less in any -------- ------- transaction involving aggregate consideration in excess of $10.0 million, the Company shall deliver an Officers' Certificate to the Trustee stating that a majority of the Disinterested Directors of either (i) the Board of Triton PCS Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time of such transaction the Company is not a Subsidiary of Triton PCS Holdings, Inc., have determined, in their good faith judgment, that the terms of such transaction are at least as favorable to as the terms that could be obtained by the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not made on an Affiliate of the Company;
arms'-length basis between unaffiliated parties and (2y) if such Affiliate Transaction involves the aggregate payments or value consideration is in excess of $1.0 25.0 million, the Company obtains and promptly delivers shall also deliver to the Trustee a resolution of its Board of Directors (including a majority Trustee, prior to the consummation of the disinterested members transaction, the favorable written opinion of a nationally recognized accounting, appraisal or investment banking firm as to the fairness of the Board transaction to Holders, from a financial point of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 millionview. Notwithstanding the foregoing, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair restrictions set forth in this Section 4.03 shall not apply to (i) transactions between or among the Company and the and/or any Restricted Subsidiaries.
, (bii) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into Payment or suffer to exist the following:
-30- Permitted Investment permitted by Section 4.06, (1iii) any transaction directors' fees, indemnification and similar arrangements, officers' indemnification, employee stock option or series of transactions between the Company employee benefit plans and one employee salaries and bonuses paid or more Restricted Subsidiaries or between two or more Restricted Subsidiaries created in the ordinary course of business, PROVIDED (iv) any other agreement in effect on the Issue Date, as the same shall be amended from time to time; provided, -------- however, that no more than 5% any material amendment shall be required to comply with the ------- provisions of the total voting power preceding paragraph of this Section 4.03, (v) transactions with AT&T Corporation, AT&T Wireless Services, Inc. and AT&T Wireless PCS LLC or any of their affiliates (collectively, "AT&T") relating to the Voting Stock marketing or ---- provision of telecommunication services or related hardware, software or equipment on terms that are no less favorable (on when taken as a fully diluted basiswhole) to the Company or such Restricted Subsidiary, as applicable, than those available from unaffiliated third parties, (vi) transactions involving the leasing or sharing or other use by the Company or any Restricted Subsidiary of communications network facilities (including, without limitation, cable or fiber lines, equipment or transmission capacity) of any such Restricted Subsidiary is owned by an Affiliate of the Company or any beneficial holder of 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc. (other than such Affiliate or holder being a "Related Party") on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary);
, as applicable, than those available from such Related Party to unaffiliated third parties, (2vii) transactions involving the provision of telecommunication services by a Related Party in the ordinary course of its business to the Company or any Restricted Subsidiary, or by the Company or any Restricted Subsidiary to a Related Party, on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary, as applicable, than those available from such Related Party to unaffiliated third parties, (viii) any Restricted Payment permitted to be made sales agency agreements pursuant to Section 4.08 which an Affiliate has the right to market any or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer all of the products or director services of the Company or any of the Restricted Subsidiaries Subsidiaries, and (ix) customary commercial banking, investment banking, underwriting, placement agent or financial advisory fees paid in his or her capacity as an officer or director, so long as connection with services rendered to the Board of Directors in good faith shall have approved the terms thereof;
(4) loans Company and advances to employees made its subsidiaries in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycourse.
Appears in 1 contract
Sources: Indenture (Triton PCS Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary, as the case may be, and
) unless: (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-transaction in arm's length transaction dealings with a Person that is not an Affiliate Affiliate, (ii) with respect to a transaction or series of the Company;
(2) if such Affiliate Transaction involves aggregate related transactions involving payments or value in excess of 84 $1.0 million1,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving certifying that such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction transaction complies with clauses clause (a)(1)(A) and (a)(1)(Bi) above; and
, (3iii) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains with respect to a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between involving payments in excess of $5,000,000 but less than $15,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (a) such transaction or series of related transactions complies with clause (i) above and (b) such transaction or series of related transactions will have been approved by a majority of the Disinterested Directors of the Company, and (iv) with respect to a transaction or series of transactions involving payments of $15,000,000 or more in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (a) such transaction or series of related transactions complies with clause (i) above, (b) such transaction or series of related transactions will have been approved by a majority of the Disinterested Directors of the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries (c) the Company will have received the written opinion of an investment banking firm nationally recognized in the ordinary course United States that such transaction or series of businesstransactions is fair, PROVIDED that no more than 5% from a financial point of view, to the total voting power of the Voting Stock (on a fully diluted basis) of any Company or such Restricted Subsidiary is owned by an Affiliate of Subsidiary; provided, however, that the foregoing restriction will not apply to: (1) transactions between or among the Company (other than a and/or any of its Restricted Subsidiary);
Subsidiaries, (2) any Restricted Payment permitted the payment of reasonable and customary regular fees to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director directors of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to who are not employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiaryany Affiliate, as (3) payments made under the case may beterms of the Company's employee compensation and other benefit arrangements, PROVIDED that such loans (4) indemnities of officers and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to directors of the Company or any Restricted Subsidiary than consistent with such agreement as in effect on the Issue Date; and
(6) sales of accounts receivablePerson's bylaws and applicable statutory provisions, or participations therein, in connection with any Receivables Facility(5) Restricted Payments that are permitted by the provisions of the Indenture.
Appears in 1 contract
Sources: Indenture (Mission Resources Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company unless (an "AFFILIATE TRANSACTION"), unless:
(1a) the such transaction is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is third parties who are not an Affiliate Affiliates and (b) either (i) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million2,000,000, but less than $10,000,000, the Company obtains and promptly delivers a resolution of the Board of Directors of the Company set forth in an Officers' Certificate to the Trustee a resolution of its certifying that such transaction or transactions comply with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Company or (ii) with respect to a transaction or series of related transactions involving aggregate payments equal to or greater than $10,000,000, the Company delivers to the Trustee (x) an Officers' Certificate certifying that such transaction or transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) of the Company and (a)(1)(By) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from a nationally recognized investment banking firm or an Independent Financial Advisor independent financial advisor of national standing to the effect that the such transaction is or transactions are fair to the Company and or such Restricted Subsidiary from a financial point of view. The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard to the foregoing limitationsCompany from paying reasonable and customary regular compensation or fees to, or entering into customary expense reimbursement, indemnification or similar arrangements with, directors and officers of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:Subsidiary;
(1C) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary so long as Siemens is owned by not an Affiliate of the Company, transactions with the Siemens Joint Venture provided such transactions are -------- either (i) in accordance with the terms and provisions of the Joint Venture Agreement, (ii) in accordance with the operating budget of the Siemens Joint Venture, which operating budget has been adopted and approved in accordance with the terms of the Joint Venture Agreement or (iii) approved by the Company and Siemens;
(D) transactions permitted by the provisions of Section 1011;
(E) transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment; and
(F) in the case of joint ventures (other than a Restricted Subsidiary);
(2the Siemens Joint Venture) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of in which the Company or any of the Restricted Subsidiaries in his or her capacity as has an officer or directorinterest, so long as other parties to the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices joint venture that are not Affiliates of the Company or own at least 50% of the equity of such Restricted Subsidiaryjoint venture, as the case may be, PROVIDED that transactions between such loans joint venture and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilitySubsidiary.
Appears in 1 contract
Sources: Indenture (Breed Technologies Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Majority Owned Restricted Subsidiary, as the case may be, and
) unless (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable an arm's-length transaction with a Person that is unrelated third parties who are not an Affiliate Affiliates, (ii) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments consideration equal to or value in excess of greater than $1.0 10 million, the Company obtains and promptly delivers shall have delivered an officers' certificate to the Trustee a resolution certifying that such transaction or series of its Board related transactions complies with clause (i) above and such transaction or series of Directors (including related transactions has been approved by a majority of the disinterested members Directors of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains has obtained a written opinion from an Independent Financial Advisor that the transaction is fair a nationally recognized investment banking firm to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any effect that such transaction or series of related transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted fair to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view and (iii) with respect to any transaction or series of related transactions including aggregate consideration in excess of $20 million, the Company shall have delivered an officers' certificate to the Trustee certifying that such loans transaction or series of related transactions complies with clause (i) above and advances do not exceed $1.0 million such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors, or in the event no members of the Board of Directors are Disinterested Directors with respect to any one employee and $5.0 million transaction or series of transactions included in this clause (iii), the Company shall obtain an opinion from a nationally recognized investment banking firm as described above; provided, however, that this provision will not restrict (1) any transaction by the Company or any Restricted Subsidiary with an Affiliate directly related to the purchase, sale or distribution of products in the aggregate at ordinary course of business, including, without limitation, transactions related to the purchase, sale or distribution of programming, subscriber management services, transmission services and services related to the publication of programming guides, (2) the Company from paying reasonable and customary regular compensation and fees to directors of the Company or any one time outstanding;
(5) agreements Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, including, without limitation, any such fees which the Company has agreed to pay to any director pursuant to an agreement in effect on the Issue Date and listed on Schedule A to this Indenture, (3) the payment of compensation (including stock options and other incentive compensation) to officers and other employees the terms of which are approved by the Board of Directors, (4) any modificationstransactions pursuant to a Management Agreement, extensions (5) the Company or renewals thereto any Restricted Subsidiary from making any Restricted Payment in compliance with Section 1011, (6) (x) transactions pursuant to any Management Contract, Overhead Agreement or Service Agreement that are is entered into prior to the Issue Date and is listed in Schedule A to this Indenture; or (y) transactions pursuant to any Organizational Contract, Overhead Agreement or Service Agreement that is entered into after the Issue Date and has substantially identical terms as, and is no less favorable to the Company or any Restricted Subsidiary than such agreement than, the Organizational Contracts, Overhead Agreements or Service Agreements, as the case may be, listed in effect on the Issue Date; and
(6) sales of accounts receivableSchedule A to this Indenture, or participations therein(7) amendments, in connection with any Receivables Facilitymodifications or alterations of Management Agreements, Organizational Contracts, Overhead Agreements and Service Agreements under (b) below.
Appears in 1 contract
Sources: Indenture (Entertainment Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"other than the Company or a Wholly Owned Subsidiary), unless:
(1a) the terms of such Affiliate Transaction aretransaction is set forth in writing;
(Ab) fair and reasonable to the Company such transaction or such Restricted Subsidiary, as the case may be, and
(B) series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm'sarm’s-length transaction with a Person that is not an Affiliate of the Company;Company or such Restricted Subsidiary; and
(c) with respect to a transaction or series of transactions involving aggregate payments by or to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of:
(1) $15.0 million but less than $25.0 million, the Board of Directors of the Company (including a majority of the disinterested members of such Board of Directors) approves such transaction or series of transactions and certifies that such transaction or series of transactions complies with clause (b) of this paragraph, as evidenced by a certified resolution delivered to the Trustee, or
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 25.0 million, ,
(A) the Company obtains receives from an independent, nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and promptly delivers subject matter of the transaction (or series of transactions) at issue, a written opinion that such transaction (or series of transactions) is fair, from a financial point of view, to the Trustee a resolution of its Company or such Restricted Subsidiary, and
(B) such Board of Directors (including a majority of the disinterested members of the Board of DirectorsDirectors of the Company) approving approves such Affiliate Transaction transaction or series of transactions and certifying that, in its good faith judgment, certifies that such Affiliate Transaction transaction or series of transactions complies with clauses clause (a)(1)(Ab) and (a)(1)(B) above; andof this paragraph, as evidenced by a certified resolution delivered to the Trustee. The preceding limitations of this Section 4.16 do not apply to:
(3a) if such Affiliate Transaction involves aggregate payments or value in excess the payment of $5.0 million, reasonable and customary regular fees to directors of the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to or any of its Restricted Subsidiaries who are not employees of the Company and the or any of its Restricted Subsidiaries.;
(b) Without regard indemnities of officers and directors of the Company or any Subsidiary consistent with such Person’s charter, bylaws and applicable statutory provisions;
(c) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and employee stock purchase and ownership plans approved by the Board of Directors of the Company;
(d) loans made in compliance with the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
(1) to the foregoing limitationsofficers, directors or employees of the Company or any Restricted Subsidiary may enter into approved by the Board of Directors of the Company, the net proceeds of which are used solely to purchase common stock of the Company in connection with a restricted stock or suffer employee stock purchase plan, or to exist exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the following:purchase price of such common stock or the exercise price of such stock options, or
(12) to refinance loans, together with accrued interest thereon, made pursuant to this clause (d);
(e) advances and loans made in compliance with the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to officers, directors and employees of the Company or any Subsidiary in the ordinary course of business (including, without limitation, non-cash loans for the purchase of joint interests in exploratory and developmental oil and gas prospects or other similar ventures offered by the Company), provided such loans and advances (excluding loans or advances made pursuant to the preceding clause (d)) do not exceed $2.0 million at any one time outstanding;
(f) any Restricted Payment permitted to be paid pursuant to Section 4.12;
(g) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED provided that no more than 510% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);; and
(2h) any Restricted Payment permitted to be made transaction or series of transactions pursuant to Section 4.08 any agreement or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director obligation of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Except as otherwise permitted by this Indenture, neither the Company nor any of its Restricted Subsidiaries shall notmake any Investment, and shall not permit any Restricted Subsidiary loan, advance, guaranty or capital contribution to, directly or indirectlyfor the benefit of, conduct or sell, lease or otherwise transfer or dispose of any business of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or suffer to exist amend any transaction contract, agreement or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) understanding with, or for the benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries, unless (an "AFFILIATE TRANSACTION"), unless:
i) such transaction or series of transactions is in the best interests of the Company or such Restricted Subsidiary based on all relevant facts and circumstances; (1ii) the terms such transaction or series of such Affiliate Transaction are
(A) transactions is fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) Subsidiary and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-transaction on an arms' length transaction with basis from a Person that is not an Affiliate of the Company;
Company or any of its Restricted Subsidiaries; and (2iii) if such Affiliate Transaction involves (a) with respect to a transaction or series of related transactions involving aggregate payments or value in excess of $1.0 million2,500,000, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including and a majority of the disinterested members Disinterested Directors shall approve such transaction or series of the transactions by a Board Resolution evidencing their determination that such transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction transactions complies with clauses (a)(1)(Ai) and (a)(1)(Bii) above; and
, and (3b) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments equal to or value in excess of greater than $5.0 million10,000,000, the Company obtains receives a written opinion from an Independent Financial Advisor a nationally recognized investment bank or valuation firm or, with respect to a transaction requiring the valuation of real property, a nationally recognized real estate appraisal firm, that the such transaction or series of transactions is fair to the Company and the Restricted Subsidiaries.
from a financial point of view. The foregoing limitation shall not apply to: (bi) Without regard to the foregoing limitations, any payment of money or issuance of securities by the Company or any Restricted Subsidiary may enter into of the Company pursuant to employment agreements or suffer arrangements and employee benefit plans, including reimbursement or advancement of out-of-pocket expenses and directors' and officers' liability insurance; (ii) reasonable and customary payments and other benefits (including indemnification) provided to exist directors for service on the following:
Board of Directors of the Company or any of its Restricted Subsidiaries and reimbursement of expenses related thereto; or (1iii) any transaction or series of transactions between the Company and one or more any Restricted Subsidiaries Subsidiary of the Company, or between two or more one Restricted Subsidiaries in Subsidiary of the ordinary course Company and another Restricted Subsidiary of businessthe Company, PROVIDED provided that no not more than 520% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an any Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of other than the Company or such Restricted Subsidiary, as a Wholly-Owned Subsidiary of the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityCompany).
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 or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person that is not an Affiliate of the Company;
unrelated third party, (2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 million, the Company obtains delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above, (3) with respect to any transaction or series of related transactions involving aggregate value in excess of $2.5 million, such transaction or series of related transactions has been approved by either (a) a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (b) the Audit Committee of the Board of Directors of the Company by a majority of members thereof who do not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions and promptly (4) with respect to any transaction or series of related transactions involving aggregate value in excess of $10.0 million, the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer to exist the followingfrom a financial point of view; provided, however, that this provision shall not apply to:
(1i) transactions and agreements in existence on the Issue Date and any transaction renewals, amendments, modifications and changes to such agreements which are not more adverse in any material respect to the Company than such transactions and agreements prior to such renewal, amendment, modification or series of change,
(ii) transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of among the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiaries;
(4iii) loans transactions between or among the Company or any of its Restricted Subsidiaries and advances joint ventures that constitute Affiliates of the Company or any of its Restricted Subsidiaries solely by virtue of the Company’s or such Restricted Subsidiary’s ownership interest in such joint venture, to the extent otherwise permitted by this Indenture;
(iv) Restricted Payments permitted by this Indenture;
(v) compensation (including bonuses and equity compensation) paid to and other benefits (including retirement, health and other benefit plans, profit sharing plans, awards and transactions under stock incentive plans or management equity subscription agreements), severance agreements, and indemnification or insurance arrangements provided on behalf of officers, directors, managers, employees made or consultants of the Company or any Restricted Subsidiary, in each case in the ordinary course of business;
(vi) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any stockholders’ agreement (including any registration rights agreement or purchase agreement but excluding any management agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter;
(vii) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners, lessors or lessees of property (real or personal) or purchasers or sellers of goods or services, in each case in the ordinary course of business and consistent otherwise in compliance with the past practices terms of this Indenture which are fair to the Company or such and its Restricted SubsidiarySubsidiaries, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million on terms substantially similar to any one employee and $5.0 million those contained in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to similar contracts entered into by the Company or any Restricted Subsidiary than with unaffiliated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, on terms that are in the reasonable determination of the senior management of the Company, at least as favorable as might reasonably have been obtained at such agreement as in effect on time from an unaffiliated third party;
(viii) the Issue Dateissuance of Qualified Capital Stock (including all warrants, options or other rights to acquire Qualified Capital Stock) of the Company; and
(6ix) sales of accounts receivableloans and advances to, or participations thereinand reimbursements of, officers, directors, managers and employees for business related travel expenses, moving expenses and other similar expenses, in connection each case incurred in the ordinary course of business or consistent with any Receivables Facilitypast practices and in compliance with all applicable laws.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of any Property assets, property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company its Affiliates, except: (an "AFFILIATE TRANSACTION"), unless:
(1a) the on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that which could be have been obtained in a comparable arm's-length transaction with a Person that is at such time from Persons who are not an Affiliate Affiliates of the Company;
; (2b) if such Affiliate Transaction involves with respect to a transaction or series of related transactions involving aggregate payments or value in excess of equal to or greater than $1.0 million20,000,000, the Company obtains and promptly delivers shall have delivered an Officers’ Certificate to the Trustee certifying that such transaction or transactions comply with the preceding clause (a); and (c) with respect to a resolution transaction or series of its Board of Directors (including related transactions involving aggregate payments or value equal to or greater than $50,000,000, such transaction or transactions shall have been approved by a majority of the disinterested members Disinterested Members of the Board of Directors) approving such Affiliate Transaction and certifying thatDirectors of the Company; provided, however, that in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess the event there are no Disinterested Members of $5.0 millionthe Board of Directors of the Company, the Board of Directors of the Company obtains shall also have received a written opinion from an Independent Financial Advisor Qualified Party to the effect that such transaction or series of related transactions is fair, from a financial standpoint, to the Company and its Restricted Subsidiaries or is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction is fair to with a non-Affiliate. Notwithstanding the foregoing, the restrictions set forth in this Section 10.11 shall not apply to: (i) transactions with or among the Company and the Restricted Subsidiaries.
; (bii) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% or approved by a majority of the total voting power Board of Directors of the Voting Stock (on a fully diluted basis) of Company, between the Company or any such Restricted Subsidiary is owned by an and any Affiliate of the Company (other than that is a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 joint venture or any Permitted Investment;
(3) any transactionsimilar entity, including United Rentals Industrial Services Inc.; (iii) (A) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, collective bargaining agreements, compensation and or employee benefit arrangementsarrangements and incentive arrangements with any officer, with an officer director or director employee of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made Subsidiary entered into in the ordinary course of business and consistent (B) any transaction with an officer or director in the past practices ordinary course of business not involving more than $1,000,000 in any one year; (iv) Restricted Payments made in compliance with Section 10.09; (v) loans and advances to officers, directors and employees of the Company or such any Restricted SubsidiarySubsidiary for travel, as the entertainment, moving and other relocation expenses, in each case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million made in the aggregate at any one time outstanding;
ordinary course of business; (5vi) transactions pursuant to agreements in effect on the Issue Date Date; (vii) any sale, conveyance or other transfer of assets customarily transferred in a Securitization Transaction to a Special Purpose Vehicle; (viii) transactions with customers, clients, suppliers, joint venture partners, joint ventures, including their members or partners, or purchasers or sellers of goods or services, in each case in the ordinary course of business, including pursuant to joint venture agreements, and any modificationsotherwise in compliance with the terms of this Indenture which are, extensions or renewals thereto that are in the aggregate (taking into account all the costs and benefits associated with such transactions), materially no less favorable to the Company or any the applicable Restricted Subsidiary than such agreement as those that would have been obtained in effect on a comparable transaction by the Issue Date; and
(6) sales Company or that Restricted Subsidiary with an unrelated person or entity, in the good faith determination of accounts receivablethe Company’s Board of Directors or its senior management, or participations thereinare on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (ix) any issuance or sale of Capital Stock (other than Redeemable Capital Stock) of the Company or any capital contribution to the Company; and (x) the issuance of the Securities and Guarantees and the Merger Transactions, including the payment of all fees and expenses relating thereto and the payments to be made by the Company to Holdings in connection with any Receivables Facilitytherewith.
Appears in 1 contract
Sources: Indenture (United Rentals 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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless such transaction or series of related transactions is entered into in good faith and in writing and (Ba) no such transaction or series of related transactions is on terms that are not substantially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million5,000,000, such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $10,000,000, the Company obtains and promptly delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; provided, however, that this provision shall not apply to exist the following:
(1) employment agreements and employee benefit arrangements with any transaction officer or series director of transactions between the Company and one Company, including under any stock option or more Restricted Subsidiaries or between two or more Restricted Subsidiaries stock incentive plans, entered into in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans Subsidiary and advances do not exceed $1.0 million (2) transactions pursuant to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and date of this Indenture, including amendments thereto entered into after that date, provided that the terms of any modifications, extensions or renewals thereto that such amendment are no not less favorable to the Company or any such Restricted Subsidiary than the terms of such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityprior to such amendment.
Appears in 1 contract
Sources: Indenture (Jo-Ann Stores Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange having a value in excess of any Property or the rendering of any service) with, $1.0 million with or for the benefit of, any of an Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such a Restricted Subsidiary, as the case may beincluding any Investment, and
(B) either directly or indirectly, unless such transaction is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm'sarm’s-length transaction with a Person an entity that is not an Affiliate and is in the best interests of the Company or such Restricted Subsidiary. For any transaction or series of related transactions involving aggregate value in excess of $10.0 million, such transaction or series of related transactions is approved by either (x) a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (y) the audit committee of the Board of Directors of the Company (with any Director on such committee that is not a Disinterested Director recusing himself or herself). For any transaction or series of related transactions involving aggregate value in excess of $25.0 million, either (1) such transaction or series of related transactions has been approved by either (x) a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (y) the audit committee of the Board of Directors of the Company (with any Director on such committee that is not a Disinterested Director recusing himself or herself ), or (2) the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view.
(b) The foregoing restrictions shall not apply to:
(1) any transaction pursuant to agreements in effect on the Issue Date;
(2) if such Affiliate Transaction involves aggregate payments any employment agreement or value in excess of $1.0 millionemployee benefit arrangements with any officer or director, including under any stock option or stock incentive plans, entered into by the Company obtains and promptly delivers to the Trustee a resolution or any of its Board Restricted Subsidiaries in the ordinary course of Directors (including business of the Company or such Restricted Subsidiary or approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and;
(3) if such Affiliate Transaction involves aggregate payments transactions between or value in excess of $5.0 million, among the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the and/or its Restricted Subsidiaries.;
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(14) any transaction or series with any Person (x) that is not an Affiliate of transactions between the Company and one immediately before the consummation of such transaction that becomes an Affiliate of the Company as a result of such transaction or more Restricted Subsidiaries (y) that is an Affiliate of the Company solely because the Company, directly or between two indirectly, owns Capital Stock in, or more Restricted Subsidiaries controls, such Person;
(5) transactions with joint ventures entered into in the ordinary course of business, PROVIDED provided that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an other Affiliate of the Company (other than a Restricted Subsidiary)Subsidiary thereof) directly or indirectly holds any Capital Stock of such joint venture;
(26) payment of reasonable directors fees to Persons who are not otherwise employees of the Company;
(7) indemnities of officers, directors and employees of the Company or any Subsidiary of the Company pursuant to bylaws, or statutory provisions or indemnification agreements or the purchase of indemnification insurance for any director or officer;
(8) any Restricted Payment or Permitted Investment that is permitted to be made pursuant to Section 4.08 or any Permitted Investment;4.7; and
(39) any transaction, including compensation and employee benefit arrangements, written agreements entered into or assumed in connection with an officer or director acquisitions of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;other businesses with Persons who were not Affiliates prior to such transactions.
(4c) loans and advances Notwithstanding the preceding, the requirements set forth in the third sentence of Section 4.11(a) relating to employees made an opinion from a nationally recognized expert shall not apply to leases of property or equipment entered into in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitybusiness.
Appears in 1 contract
Sources: Indenture (Group 1 Automotive Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"other than the Company or a Wholly Owned Subsidiary), unless:
(1a) the terms of such Affiliate Transaction aretransaction is set forth in writing;
(Ab) fair and reasonable to the Company such transaction or such Restricted Subsidiary, as the case may be, and
(B) series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;Company or such Restricted Subsidiary; and
(c) with respect to a transaction or series of transactions involving aggregate payments by or to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of:
(1) $1.0 million but less than $5.0 million, an officer of the Company certifies that such transaction or series of transactions complies with clause (b) of this paragraph, as evidenced by an Officer's Certificate delivered to the Trustee,
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 5.0 million but less than $20.0 million, the Board of Directors of the Company obtains (including a majority of the disinterested members of such Board of Directors) approves such transaction or series of transactions and promptly delivers certifies that such transaction or series of transactions complies with clause (b) of this paragraph, as evidenced by a certified resolution delivered to the Trustee Trustee, or
(3) $20.0 million,
(A) the Company receives from an independent, nationally recognized investment banking firm or appraisal firm, in either case specializing or having a resolution specialty in the type and subject matter of its the transaction (or series of transactions) at issue, a written opinion that such transaction (or series of transactions) is fair, from a financial point of view, to the Company or such Restricted Subsidiary, and
(B) such Board of Directors (including a majority of the disinterested members of the Board of DirectorsDirectors of the Company) approving approves such Affiliate Transaction transaction or series of transactions and certifying that, in its good faith judgment, certifies that such Affiliate Transaction transaction or series of transactions complies with clauses clause (a)(1)(Ab) and (a)(1)(B) above; andof this paragraph, as evidenced by a certified resolution delivered to the Trustee. The preceding limitations of this Section 4.16 do not apply to:
(3a) if such Affiliate Transaction involves aggregate payments or value in excess the payment of $5.0 million, reasonable and customary regular fees to directors of the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to or any of its Restricted Subsidiaries who are not employees of the Company and the or any of its Restricted Subsidiaries.;
(b) Without regard to indemnities of officers and directors of the foregoing limitationsCompany or any Subsidiary consistent with such Person's charter, bylaws and applicable statutory provisions;
(c) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and employee stock purchase and ownership plans approved by the Board of Directors of the Company;
(d) loans made to:
(1) officers, directors or employees of the Company or any Restricted Subsidiary may enter into approved by the Board of Directors of the Company, the net proceeds of which are used solely to purchase common stock of the Company in connection with a restricted stock or suffer employee stock purchase plan, or to exist exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the following:purchase price of such common stock or the exercise price of such stock options, or
(12) refinance loans, together with accrued interest thereon, made pursuant to this clause (d);
(e) advances and loans to officers, directors and employees of the Company or any Subsidiary in the ordinary course of business (including, without limitation, non-cash loans for the purchase of joint interests in exploratory and developmental oil and gas prospects or other similar ventures offered by the Company), provided such loans and advances (excluding loans or advances made pursuant to the preceding clause (d)) do not exceed $2.0 million at any one time outstanding;
(f) any Restricted Payment permitted to be paid pursuant to Section 4.12.
(g) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED provided that no more than 510% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);; and
(2h) any Restricted Payment permitted to be made transaction or series of transactions pursuant to Section 4.08 any agreement or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director obligation of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary), as the case may be, and
unless (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-length transaction with a Person that is not an Affiliate unrelated third parties, (ii) with respect to any one transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million1,000,000, the Company obtains and promptly delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above, (iii) with respect to a resolution transaction or series of its Board related transactions involving payments in excess of Directors $2,500,000 but less than or equal to $7,500,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (including A) such transaction or series of related transactions complies with clause (i) above and (B) such transaction or series of related transactions has been approved by a majority of the disinterested members Disinterested Directors of the Board of Directors) approving such Affiliate Transaction and certifying thatCompany, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(Biv) above; and
(3) if such Affiliate Transaction involves with respect to any one transaction or series of related transactions involving aggregate payments or value in excess of $5.0 million, 7,500,000 the Company obtains delivers an Officers' Certificate to the Trustee certifying to the two matters referred to in clause (iii) above and that the Company has obtained a written opinion from an Independent Financial Advisor that independent nationally recognized investment banking firm or appraisal firm specializing or having a speciality in the type and subject matter of the transaction or series of related transactions at issue, which opinion shall be to the effect set forth in clause (i) above or shall state that such transaction or series of related transactions is fair from a financial point of view to the Company and the or such Restricted Subsidiaries.
(b) Without regard to Subsidiary; provided, however, that the foregoing limitationsrestriction shall not apply to (v) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 3,000,000 outstanding at any one time outstanding;
time, (5w) agreements in effect on the Issue Date indemnities of officers, directors and any modifications, extensions or renewals thereto that are no less favorable to employees of the Company or any Restricted Subsidiary than such agreement as in effect on permitted by bylaw or statutory provisions, (x) the Issue Date; and
payment of reasonable and customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate, (6y) sales of accounts receivablethe Company's employee compensation and other benefit arrangements, or participations therein(z) the repayment of the Subordinated Note, the Acquisition Financing and the repayment of debt owed (including capital leases) by the Company as described in connection with any Receivables Facilitythe Offering Circular under "Use of Proceeds" and the redemption of the Westgate Preferred Stock.
Appears in 1 contract
Sources: Indenture (Grant Geophysical Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist conduct any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets or the rendering of any serviceservice or the making of any Investment) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
“Affiliate Transaction”) on terms: (1i) the terms of such Affiliate Transaction are
(A) fair and reasonable that are less favorable to the Company or such Restricted Subsidiary, as the case may be, and
than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person who is not an Affiliate and (Bii) that, in the event such Affiliate Transaction involves an aggregate amount in excess of $10.0 million, are not in writing and have not been approved or negotiated and entered into on behalf of the Company or such Restricted Subsidiary by Senior Management acting pursuant to authorizing resolutions adopted by a majority of the members of the Board of Directors or by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (i) above). In addition, any Affiliate Transaction involving aggregate payments or other transfers by the Company and its Restricted Subsidiaries in excess of $20.0 million will also require an opinion from an independent investment banking firm or appraiser, as appropriate, of national prominence, to the effect that the terms of such transaction are either (i) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a comparable arm'sarm’s-length transaction dealings with a Person that who is not an Affiliate of the Company;
or (2ii) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales from a financial point of accounts receivable, or participations therein, in connection with any Receivables Facilityview.
Appears in 1 contract
Sources: Indenture (Smithfield Foods Inc)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unlessIssuer involving aggregate payments or consideration in excess of £5.0 million unless such transaction or series of transactions is entered into in good faith and:
(1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'sarm’s-length transaction with a Person third parties that is are not an Affiliate of the CompanyAffiliates;
(2b) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value in excess of $1.0 greater than £10.0 million, the Company obtains and promptly delivers to the Trustee Issuer shall deliver a resolution of its Board of Directors (including set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the disinterested members Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Issuer’s Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3c) if such Affiliate Transaction involves aggregate payments in the case that there are no Disinterested Directors or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair with respect to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between involving aggregate payments or the Company and one transfer of assets or more Restricted Subsidiaries the provision of services, in each case having a value greater than £30.0 million, the Issuer shall deliver to the Trustee a written opinion of an accounting, appraisal, investment banking or between two advisory firm of international standing stating that the transaction or more Restricted Subsidiaries in series of transactions is fair to the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any Issuer or such Restricted Subsidiary is owned by an Affiliate from a financial point of view. Notwithstanding the Company foregoing, the restrictions set forth in this description will not apply to:
(other than a Restricted Subsidiaryi) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees, so long as the Issuer’s Board of Directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or payments to be fair consideration therefor;
(2ii) any Restricted Payment permitted to be made pursuant to Payments not prohibited by Section 4.08 or any the making of an Investment that is a Permitted Investment;
(3iii) agreements and arrangements existing on the date of this Indenture and any transactionamendment, including compensation and employee benefit arrangementsmodification or supplement thereto; provided that any such amendment, with an officer modification or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved supplement to the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do thereof is not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable more disadvantageous to the Company Holders in any material respect than the original agreement or any Restricted Subsidiary than such agreement arrangement as in effect on the Issue Date; and;
(6iv) any payments or other transactions pursuant to a tax sharing agreement between the Issuer and any other Person with which the Issuer files a consolidated tax return or with which the Issuer is part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation to the extent that the amount paid under the agreement or arrangement does not exceed the amount of the tax not required to be paid as a result of the agreement or arrangement;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Issuer’s Board of Directors;
(vi) the granting and performance of registration rights for the Issuer’s securities;
(vii) (x) issuances or sales of accounts receivableQualified Capital Stock of the Issuer or Deeply Subordinated Funding and (y) any amendment, waiver or participations therein, other transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Indenture;
(viii) transactions between or among the Issuer and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(ix) transactions with a Person that is an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary of the Issuer owns Capital Stock in such Person or solely because the Issuer or a Restricted Subsidiary of the Issuer has the right to designate one or more members of the Board of Directors or similar governing body of such Person; or
(x) transactions to occur on or about the Issue Date in connection with any Receivables Facilitythe restructuring of the Towergate group (including actions pursuant to or contemplated by the scheme of arrangement between Towergate Finance plc and the scheme creditors referred to therein).
Appears in 1 contract
Sources: Indenture (Townfrost LTD)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to except that the Company and any of its Restricted Subsidiaries may enter into any transaction or series of related transactions with any Restricted Subsidiary of the Company without limitation under this covenant) unless: (i) such Restricted Subsidiary, as the case may be, and
(B) transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-transaction in an arm's length transaction dealing with a Person that is not such an Affiliate or, in the absence of such a comparable transaction, on terms that the Company;
Disinterested Directors determine in good faith (2whose determination shall be conclusive) if such Affiliate Transaction involves would be offered to a Person that is not an Affiliate; (ii) with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 3.0 million, the Company obtains and promptly delivers to the Trustee a resolution such transaction or series of its Board of Directors (including related transactions has been approved by a majority of the disinterested members Disinterested Directors of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) Directors of the Company; and (a)(1)(Biii) above; and
(3) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $5.0 10.0 million, (x) in the case of a transaction involving real property, the aggregate rental or sale price of such real property shall be the fair market value of such real property as determined in a written opinion by an independent, nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which approval is required and (y) in all other cases, the Company obtains shall have received a written opinion from of an Independent Financial Advisor independent, nationally-recognized expert with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which approval is required to the effect that the transaction is or series of related transactions are fair to the Company or such Restricted Subsidiary from a financial point of view. The limitations set forth in this paragraph will not apply to (i) transactions entered into pursuant to any agreement already in effect on the date of this Indenture and the Restricted Subsidiaries.
(b) Without regard any renewals or extensions thereof not involving modifications materially adverse to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
Subsidiary, (1ii) normal banking relationships with an Affiliate on an arms' length basis, (iii) any transaction employment agreement, stock option, employee benefit, indemnification, compensation, business expense reimbursement or series of transactions between the Company and one other employment-related agreement, arrangement or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned plan entered into by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
either (4a) loans and advances to employees made in the ordinary course of business and consistent with the past practices practice of the Company or such Restricted SubsidiarySubsidiary or (b) which agreement, arrangement or plan was adopted by the Board of Directors of the Company or such Restricted Subsidiary (including a majority of the Disinterested Directors), as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to (iv) any one employee and $5.0 million payment made in the aggregate at any one time outstanding;
accordance with Section 4.6, (5v) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable transactions pursuant to the Company or any Restricted Subsidiary than such agreement Management Agreement which are in compliance with the terms of the Management Agreement and the Guidelines as in effect on the Issue Date; and
Closing Date and (6vi) sales any transaction or series of accounts receivable, or participations therein, related transactions in connection with any Receivables Facilitywhich the total amount involved does not exceed $250,000.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly enter into, renew or indirectly, conduct any business or enter into or suffer to exist extend any transaction or series of transactions (including including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION")or any Restricted Subsidiary, unless:
(1) the terms of such Affiliate Transaction are
(A) except upon fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person that is not such an Affiliate of the Company;Affiliate. The foregoing limitation does not limit, and shall not apply to:
(2i) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors transactions (including A) approved by a majority of the disinterested members of the Board of DirectorsDirectors or (B) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, for which the Company obtains or a Restricted Subsidiary delivers to the Trustee a written opinion from an Independent Financial Advisor of a nationally recognized investment banking, accounting, valuation or appraisal firm stating that the transaction is fair to the Company and the or such Restricted Subsidiaries.Subsidiary from a financial point of view;
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1ii) any transaction or series of transactions solely between the Company and one or more any of its Restricted Subsidiaries or between two or more solely among Restricted Subsidiaries in Subsidiaries;
(iii) the ordinary course payment of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate reasonable and customary regular fees to officers and directors of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of indemnification arrangements entered into by the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingCompany;
(5iv) agreements in effect on any payments or other transactions pursuant to any tax-sharing agreement between the Issue Date Company and any modifications, extensions or renewals thereto that are no less favorable to other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(v) any sale of shares of Capital Stock (other than Disqualified Stock) of the Company; or 58 52
(vi) any Permitted Investments or any Restricted Subsidiary than such agreement as 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 (iv) of this paragraph, (a) the aggregate amount of which exceeds $5 million in effect on value, must be approved or determined to be fair in the Issue Date; and
manner provided for in clause (6i)(A) sales or (B) above and (b) the aggregate amount of accounts receivablewhich exceeds $10 million in value, or participations therein, must be determined to be fair in connection with any Receivables Facilitythe manner provided for in clause (i) (B) above.
Appears in 1 contract
Sources: Senior Notes Indenture (Colo Com)
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 or
(iv) enter into or suffer to exist amend or extend any transaction contract, agreement or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, understanding with or for the benefit of, any Affiliate of the Company or of any Subsidiary (an "AFFILIATE TRANSACTION"), unless:
(1) the other than Affiliate Transactions that are on terms of such Affiliate Transaction are
(A) that are fair and reasonable to the Company or such Restricted Subsidiary, as Subsidiary of the case may be, and
(B) Company and that are no less favorable to the Company or such Restricted Subsidiary, as Subsidiary of the case may be, Company than those that could be obtained in a comparable arm's-arm's length transaction with a Person by the Company or such Restricted Subsidiary of the Company from an unaffiliated party; provided, that is not if the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction or series of the Company;
(2) if such Affiliate Transaction involves Transactions involving or having an aggregate payments or value in excess of more than $1.0 20.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of DirectorsDirectors of the Company or a committee thereof shall, prior to the consummation of such Affiliate Transaction, have determined (as evidenced by a resolution thereof) approving that such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, meets the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiariesforegoing standard.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingThe restrictions in PARAGRAPH (a) above shall not apply to:
(1i) any transaction between Restricted Subsidiaries of the Company, or series of transactions between the Company and one or more any Restricted Subsidiaries or between two or more Restricted Subsidiaries Subsidiary of the Company if such transaction is not otherwise prohibited by the terms of the Indenture;
(ii) transactions entered into pursuant to the terms of the Master Intercompany Agreement and the Tax Allocation Agreement;
(iii) transactions entered into in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION")other than the Company, unless:a Wholly Owned Restricted Subsidiary or a Restricted Subsidiary that is a Guarantor) unless such transaction or series of related transactions is entered into in good faith and in writing and
(1) such transaction or series of related transactions is on terms or pursuant to arrangements that existed as of the Issue Date, or on terms or pursuant to arrangements that existed as of the Issue Date but which are thereafter amended or modified, provided that, as amended or modified, such Affiliate Transaction aretransaction or series of transactions is no more disadvantageous to Holders than the original terms or arrangements;
(A2) fair and reasonable to the Company such transaction or such Restricted Subsidiary, as the case may be, and
(B) series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person that is not an Affiliate of the Company;unrelated third party,
(23) if such Affiliate Transaction involves with respect to any transaction or series of related transactions not covered by clause (1) above involving aggregate payments or value in excess of $1.0 25.0 million, the Company obtains and promptly delivers an officers’ certificate to the Trustee certifying that such transaction or series of related transactions complies with paragraph (2) above, and
(4) with respect to any transaction or series of related transactions not covered by paragraph (1) above involving aggregate value in excess of $50.0 million, either
(A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or
(B) the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter from a financial point of view; provided, however, that this Section 4.11 shall not apply to (i) employee benefit and perquisite arrangements with any officer or director of the Company, including under any stock option or stock incentive plans, entered into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% ; (ii) any transaction permitted as a Restricted Payment or Permitted Payment or Permitted Investment pursuant to Section 4.7; (iii) the payment of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate customary fees to directors of the Company and its Restricted Subsidiaries; (other than a Restricted Subsidiary);
(2iv) any Restricted Payment permitted to be made pursuant to Section 4.08 or transaction with any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director member of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved of the terms thereof;
Company involving indemnification arrangements; and (4v) loans and or advances to employees made officers of the Company in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not to exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycalendar year.
Appears in 1 contract
Sources: Indenture (Autonation Inc /Fl)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, or for the benefit of, with any Affiliate of Parent or any of its Restricted Subsidiaries, in each case involving consideration in excess of $2.5 million, except upon terms that are not materially less favorable to Parent or such Restricted Subsidiary than could be obtained, at the Company 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 (to the extent there is such a transaction) with a Person that is not such an "AFFILIATE TRANSACTION")Affiliate.
(b) The limitation set forth in Section 10.12(a) does not limit, unlessand shall not apply to:
(1) the terms of such Affiliate Transaction are
transactions (A) fair and reasonable approved by a majority of the disinterested directors of the Board of Directors of Parent or (B) for which Parent or any Restricted Subsidiary of Parent delivers to the Company Trustee a written opinion of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to Parent or such Restricted SubsidiarySubsidiary from a financial point of view;
(2) any transaction solely between or among Parent and any of its Restricted Subsidiaries or solely between or among Restricted Subsidiaries of Parent (in each case, including any entity that becomes (including by redesignation) a Restricted Subsidiary of Parent as a result of such transaction);
(3) the payment of reasonable fees and compensation to, and indemnification, reimbursement of expenses and similar arrangements on behalf of, current, former or future directors of Parent or any Restricted Subsidiary of Parent;
(4) the issuance or sale of Capital Stock (other than Disqualified Stock) of Parent or the Partnership;
(5) any Restricted Payments not prohibited by Section 10.9;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the Closing Date, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to Parent and its Restricted Subsidiaries at the time executed than the original agreement or arrangements as in effect on the Closing Date;
(7) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by Parent or any Restricted Subsidiary of Parent with current, former or future directors, officers and employees of Parent or such Restricted Subsidiary and the payment of compensation and reimbursement of expenses and the providing of other benefits (including retirement, health, disability, option, deferred compensation, insurance and other employment benefits) to such directors, officers and employees of Parent or any Restricted Subsidiary of Parent (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans and including issuances of Capital Stock or other securities, loans or other payments, grants and awards), in each case in the ordinary course of business;
(8) loans and advances to officers and employees of Parent or any Restricted Subsidiary of Parent or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business;
(9) transactions with a Person that is an Affiliate of Parent solely because Parent, directly or indirectly, owns Capital Stock of, or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(11) payments to an Affiliate in respect of the Notes or any other Indebtedness of the Issuers or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates, any contribution to the capital of Parent or its Restricted Subsidiaries and the issuance of Capital Stock of Parent or its Restricted Subsidiaries and the granting of registration and other customary rights in connection therewith;
(12) any transactions (a) pursuant to the Transactions or the Spin-Off Agreements, and any actions pursuant thereto or contemplated thereby, (b) with Ensign or any of its Affiliates pursuant to the contracts or agreements described in the Prospectus Supplement, via incorporation by reference or otherwise, or (c) in the case of each of clauses (a) and (b), 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 Parent and its Restricted Subsidiaries than the original agreement or arrangement in existence on the Closing Date;
(13) the entering into or amending of any tax sharing, allocation or similar agreement between Parent and the Partnership and any payments thereunder;
(14) transactions between Parent or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of such Person is also a director of Parent or any of its Restricted Subsidiaries or any direct or indirect parent of Parent; provided, however, that such director abstains from voting as a director of Parent or such Restricted Subsidiary or such direct or indirect parent, as the case may be, and
(B) no less favorable to the Company or on any matter involving such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Companyother Person;
(215) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains transactions with joint ventures and promptly delivers Subsidiaries thereof and Unrestricted Subsidiaries relating to the Trustee a resolution provision of its Board of Directors (including management services, overhead or similar services or transactions that are approved by a majority of the disinterested members of the Parent’s Board of DirectorsDirectors (a director shall be disinterested if he or she has no interest in such joint venture or Unrestricted Subsidiary other than through Parent and its Restricted Subsidiaries); provided that no Affiliate of Parent (other than Parent’s Restricted Subsidiaries) approving has an interest (other than indirectly through Parent and other than such joint venture or Unrestricted Subsidiary) in any such joint venture or Unrestricted Subsidiary;
(16) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction and certifying thatsolely because Partnership or a Restricted Subsidiary owns an equity interest in such joint venture, in its good faith judgmentpartnership, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) abovelimited liability company or other entity; and
(317) if such Affiliate Transaction involves aggregate payments or value in excess pledges of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Capital Stock of Unrestricted Subsidiaries.
(bc) Without regard to the foregoing limitationsNotwithstanding Sections 10.12(a) and 10.12(b), the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between the Company covered by Section 10.12(a) and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned not covered by an Affiliate of the Company (other than a Restricted Subsidiary);
clauses (2) any Restricted Payment permitted through (17) of Section 10.12(b), the aggregate amount of which exceeds $10.0 million of consideration, shall be approved or determined to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made fair in the ordinary course of business and consistent with the past practices of the Company manner provided for in Section 10.12(b)(1)(A) or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityB).
Appears in 1 contract
Sources: First Supplemental Indenture (CareTrust REIT, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company or any Restricted Subsidiary (an other than the Company or a Restricted Subsidiary) (collectively, "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1i) the such transaction or series of transactions are on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been able to be obtained in a comparable arm's-an arm's- length transaction with a Person third parties that is are not an Affiliate Interested Persons, (ii) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments consideration equal to or value in excess of greater than $1.0 million1,000,000, the Company obtains and promptly delivers has delivered an Officers' Certificate to the Debenture Trustee a resolution certifying that such transaction or series of its transactions complies with clause (i) above and (iii) with respect to any transaction or series of related transactions involving aggregate consideration equal to or greater than $5,000,000, such transaction or series of related transactions (x) has been approved by the Board of Directors of the Company (including a majority of the disinterested members Disinterested Directors of the Board of DirectorsCompany) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses or (a)(1)(Ay) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains has obtained a written opinion from an Independent Financial Advisor a nationally recognized investment banking or valuation firm certifying that the such transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such its Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view; provided, however, that such this Section 1011 shall not restrict (1) the Company from paying reasonable and customary regular compensation and fees to directors of the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, (2) the payment of management fees to Permitted Holders in an aggregate amount not to exceed $500,000 per year, (3) loans and advances do to officers, directors and employees of the Company or any Restricted Subsidiary in the ordinary course of business in accordance with the past practices of the Company or any Restricted Subsidiary not to exceed $1.0 million to any one employee and $5.0 million 3,000,000 in the aggregate outstanding at any one time outstanding;
time, (4) any transactions made in compliance with Section 1009, (5) agreements the issuance and sale of Qualified Capital Stock of the Company to Persons who are stockholders of the Company at the time of such issuance and sale and (6) the performance of any written agreement as in effect on the Issue Issuance Date and as amended from time to time, provided that any modifications, extensions or renewals thereto that are no such amendment is not less favorable in any material respect to the Company or any Restricted Subsidiary than the terms of such agreement as in effect on the Issue Issuance Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.. 100
Appears in 1 contract
Sources: Exchange Indenture (Tmil Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not enter, and shall not permit any of its Subsidiaries to enter, directly or indirectly, into any transaction or series of related transactions with any Affiliate of the Company (other than (x) the making of a Restricted Payment or Restricted Investment otherwise permitted by Section 4.10 or those transactions specifically permitted by Section 4.10(b), (y) transactions between or among Non-Recourse Subsidiaries of the Company or (z) transactions between or among the Company and its Subsidiaries (other than Non-Recourse Subsidiaries)) including, without limitation, any loan, advance or investment or any purchase, sale, lease or exchange of property or the rendering of any service, unless the terms of such transaction or series of transactions are set forth in writing and at least as favorable as those available in a comparable transaction in arms-length dealings from an unrelated Person; provided that (i) if any such transaction or series of related transactions (other than any purchase or sale of inventory in the ordinary course of business, but including entering into any long-term arrangement involving the purchase of granules or glass fiber from, or the provision of management services of the type currently provided under the Management Agreement by, an Affiliate of the Company, including ISP or a Subsidiary thereof) involves aggregate payments or other consideration in excess of $5,000,000, such transaction or series of related transactions shall be approved (and the value of any non-cash consideration shall be determined) by a majority of those members of the Board of Directors of the Company or such Subsidiary, as the case may be, having no personal stake in such business, transaction or transactions; and (ii) in the event that such transaction or series of related transactions (other than any purchase or sale of inventory in the ordinary course of business or other than purchases of granules or glass fiber from an Affiliate of the Company, including ISP or a Subsidiary thereof) involves aggregate payments or other consideration in excess of $20,000,000 (with the value of any noncash consideration being determined by a majority of those members of the Board of Directors of the Company or such Subsidiary, as the case may be, having no personal stake in such business, transaction or transactions), the Company or such Subsidiary, as the case may be, shall have also received a written opinion from a nationally recognized investment banking firm that such transaction or series of related transactions is fair to the shareholders, in their capacity as such, of the Company or such Subsidiary from a financial point of view and such opinion has been delivered to the Trustee; provided further, in the event that the Board of Directors of the Company or the Subsidiary, as the case may be, proposing to engage in a transaction or series of related transactions described in the preceding proviso does not have any members having no personal stake in such business, transaction or transactions, the Company or such Subsidiary may enter into such transaction or series of transactions if the Company or such Subsidiary, as the case may be, shall have received the written opinion of a nationally recognized investment banking firm that the terms thereof, from a financial point of view, are fair to the shareholders of the Company or such Subsidiary, in their capacity as such (the determination as to the value of any non-cash consideration referred to in the preceding proviso to be made by such investment banking firm), and such opinion shall have been delivered to the Trustee.
(b) Section 4.12(a) shall not prevent the following:
(1) the purchase of granules from an Affiliate of the Company, including ISP or a Subsidiary of ISP, provided that (a) subject to Section 4.12(c), the price and other terms shall not be less favorable to the Company than those set forth in the Granules Contracts or (b) a nationally recognized investment banking firm or accounting firm has delivered a written opinion to the Company to the effect that either the terms thereof are fair to the Company from a financial point of view or are on terms at least as favorable to the Company as those available in comparable transactions in arms-length dealings from an unrelated third party;
(2) the continuance of the Management Agreement (including with an Affiliate of the Company other than ISP) (a) in accordance with its terms or on terms no less favorable to the Company than those contained in the Management Agreement or (b) on other terms provided that the Company shall have received the written opinion of a nationally recognized investment banking firm or accounting firm that either the terms thereof, from a financial point of view, are fair to the Company or are on terms at least as favorable to the Company as those available in comparable transactions in arms-length dealings from an unrelated Person;
(3) any transaction between the Company or a Subsidiary thereof and its own employee stock ownership or benefit plan;
(4) any transaction with an officer or director of the Company or any Subsidiary of the Company entered into in the ordinary course of business (including compensation or employee benefit arrangements with any such officer or director);
(5) any business or transaction with an Unrestricted Affiliate;
(6) borrowings by the Company or its Subsidiaries from Affiliates of the Company; provided that such loans are unsecured, are prepayable at any time without penalty, contain no restrictive covenants and the effective cost of borrowings thereunder do not exceed the interest rate then in effect from time to time under the Credit Agreements or any Refinancings thereof (or, if none of such agreements is outstanding, under unsecured bank Debt of the Company);
(7) payments made pursuant to the Tax Sharing Agreement; or
(8) purchases made pursuant to the Glass Fiber Contract; provided that the terms of such contract are set forth in writing and are at least as favorable to the Company as those available at the Spin Off Date in a comparable transaction in arms-length dealings with an unrelated Person.
(c) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly amend, modify or indirectlywaive any provision of the Tax Sharing Agreement, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property Granules Contracts or the rendering of Glass Fiber Contract in any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable manner which is significantly adverse to the Company or such Restricted Subsidiary, the holders of the Notes (it being understood that an extension or modification of any of the Granules Contracts (or any similar granules purchase contract) or the Glass Fiber Contract on terms at least as the case may be, and
(B) no less favorable to the Company as those available at the time of the extension or modification (or any such Restricted Subsidiary, as the case may be, than those that could be obtained new agreement) in a comparable arm'stransaction in arms-length transaction with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, dealings with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith unrelated Person shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable be deemed significantly adverse to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityHolders).
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company Company, unless (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of transactions are on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that is unrelated third parties who are not an Affiliate Affiliates, (ii) with respect to any one transaction or series of the Company;
(2) if such Affiliate Transaction involves transactions involving aggregate payments or value in excess of $1.0 million10,000,000, the Company obtains and promptly delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (i) above and such transaction or series of transactions have been approved by a resolution Board Resolution of its the Board of Directors of the Company, and (including iii) with respect to any one transaction or series of transactions involving aggregate payments in excess of $20,000,000, the Officers' Certificate referred to in clause (ii) above also certifies that such transaction or series of transactions have been approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying thatDisinterested Directors (or, in its good faith judgmentthe event there are no such Disinterested Directors, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, that the Company obtains has obtained a written opinion from an Independent Financial Advisor that independent nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and subject matter of the transaction is or series of transactions at issue, which opinion shall be to the effect set forth in clause (i) above or shall state that such transaction or series of transactions are fair from a financial point of view to the Company or such Restricted Subsidiary); provided, however, that this Section 10.18 shall not apply to (1) the payment of reasonable and customary regular compensation and fees to directors of the Company who are not employees of the Company or any Restricted Subsidiary, (2) the payment of dividends on, or making distributions with respect to, shares of Capital Stock of the Company on a pro rata basis to the extent permitted by Section 10.11 hereof, (3) transactions between or among the Company and/or any of its Wholly Owned Restricted Subsidiaries.
, (b4) Without regard Restricted Payments permitted by the provisions of Section 10.11 hereof, (5) loans or advances to the foregoing limitationsofficers, directors and employees of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 1,000,000 outstanding at any one time outstanding;
time, (56) agreements in effect on any transaction or series of related transactions entered into prior to the Issue Date or (7) the Company's employee compensation and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityother benefit arrangements.
Appears in 1 contract
Sources: Indenture (Ocean Energy Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries (other than a Non- Recourse Subsidiary) to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of similar transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or the rendering of any service) with, or for the benefit of, with any Affiliate of the Company (or any legal or beneficial owner of 10% or more of the voting power of the Voting Stock of the Company or with an "AFFILIATE TRANSACTION"), Affiliate of any such owner unless:
(1i) the terms of such Affiliate Transaction are
business, transaction or series of transactions are (A) fair set forth in writing and reasonable (B) at least as favorable to the Company or such Restricted Subsidiary as terms that would be obtainable at the time for a comparable transaction or series of similar transactions in arm's-length dealings with an unrelated third Person and
(ii) to the extent that such business, transaction or series of transactions (other than Debt Issued by the Company which is permitted by Section 4.03) is known by the Board of Directors of the Company to involve an Affiliate of the Company or a legal or beneficial owner of 10% or more of the voting power of the Voting Stock of the Company or an Affiliate of such owner, then
(A) with respect to a transaction or series of related transactions, other than any purchase or sale of inventory in the ordinary course of business (an "Inventory Transaction"), involving aggregate payments or other consideration in excess of $5.0 million, such transaction or series of related transactions has been approved (and the value of any noncash consideration has been determined) by a majority of those members of the Board of Directors of the Company having no personal stake in such business, transaction or series of transactions and
(B) with respect to a transaction or series of related transactions, other than any Inventory Transaction, involving aggregate payments or other consideration in excess of $20.0 million (with the value of any noncash consideration being determined by a majority of those members of the Board of Directors of the Company having no personal stake in such business, transaction or series of transactions), such transaction or series of related transactions has been determined, in the written opinion of a nationally recognized, investment banking firm to be fair, from a financial point of view, to the Company or such Subsidiary, as the case may be, and
(B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingThe provisions of Section 4.08(a) shall not prohibit:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2i) any Restricted Payment permitted to be made paid pursuant to Section 4.08 or any Permitted Investment4.05;
(3ii) any transactiontransaction between the Company and any of its Subsidiaries; provided, including compensation however, that no portion of any minority interest in any such Subsidiary is owned by (x) any Affiliate (other than the Company, a Wholly Owned Recourse Subsidiary of the Company, a Permitted Affiliate or an Unrestricted Affiliate) of the Company or (y) any legal or beneficial owner of 10% or more of the voting power of the Voting Stock of the Company or any Affiliate of such owner (other than the Company, any Wholly Owned Recourse Subsidiary of the Company or an Unrestricted Affiliate);
(iii) any transaction between Subsidiaries of the Company; provided, however, that no portion of any minority interest in any such Subsidiary is owned by (x) any Affiliate (other than the Company, a Wholly Owned Recourse Subsidiary of the Company, a Permitted Affiliate or an Unrestricted Affiliate) of the Company or (y) any legal or beneficial owner of 10% or more of the voting power of the Voting Stock of the Company or any Affiliate of such owner (other than the Company, any Wholly Owned Recourse Subsidiary of the Company or an Unrestricted Affiliate);
(iv) any transaction between the Company or a Subsidiary of the Company and its own employee benefit arrangements, stock ownership plan;
(v) any transaction with an officer or director of the Company Company, of Parent or of any Subsidiary of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made Company entered into in the ordinary course of business and consistent (including compensation or employee benefit arrangements with the past practices any such officer or director); provided, however, that such officer holds, directly or indirectly, no more than 10% of the Company or such Restricted Subsidiary, as outstanding Capital Stock of the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingCompany;
(5vi) agreements in effect on the Issue Date and any modifications, extensions business or renewals thereto that are no less favorable to the Company or transaction with an Unrestricted Affiliate;
(vii) any Restricted Subsidiary than such agreement as in effect on the Issue Datetransaction which is a Permitted Transaction; and
(6viii) sales of accounts receivableany transaction pursuant to which Mafco Holdings will provide to the Company and its Subsidiaries at their request and at the cost to Mafco Holdings with certain allocated services to be purchased from third party providers, or participations thereinsuch as legal and accounting services, in connection with any Receivables Facilityinsurance coverage and other services.
Appears in 1 contract
Sources: Indenture (Revlon Inc /De/)
Limitation on Transactions with Affiliates. (a) The Company shall not, and the Company shall not permit permit, cause or suffer any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including including, without limitation, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange, lease or exchange use of assets, property or services) or enter into any Property contract, agreement, understanding, loan, advance or the rendering of any service) with, guarantee with or for the benefit ofof any of their respective Affiliates, including, without limitation, any Affiliate of Unrestricted Subsidiary, other than the Company or another Restricted Subsidiary (each, an "AFFILIATE TRANSACTION"“Affiliate Transaction”), unlessexcept:
(1a) the such transactions that are set forth in writing and are entered into in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'stransaction on an arm’s-length transaction with basis from a Person that is not an Affiliate of the Company;
(2) Company or such Restricted Subsidiary or, if such Affiliate Transaction involves aggregate payments or value in excess the reasonable opinion of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members Independent directors of the Board of Directors) approving Company, such standard is inapplicable to the subject Affiliate Transaction, then that such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and or the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million be (or to any one employee and $5.0 million the stockholders as a group in the aggregate at any one time outstanding;case of a pro rata dividend or other distribution to stockholders permitted pursuant to Section 10.12), from a financial point of view,
(5b) agreements in effect such transactions that are existing on the Issue Date and any modificationsDate,
(c) management agreements entered into, extensions or renewals thereto that are no less favorable to consistent with past practice, by the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; one hand and an Unrestricted Subsidiary or other entity on the other hand pursuant to which the Company or such Restricted Subsidiary controls the day-to-day gaming operations of such entity, and
(6d) sales reasonable and customary compensation and indemnification of accounts receivabledirectors, officers and employees. In addition, the Company and its Restricted Subsidiaries may not enter into any Affiliate Transaction (or participations thereinseries of related Affiliate Transactions that are part of a common plan) under clause (a) above involving aggregate payments or other Fair Market Value:
(a) in excess of $5.0 million unless, prior to the consummation thereof, the transaction is approved by the Board of Directors of the Company, including a majority of the disinterested directors, such approval to be evidenced by a Board Resolution delivered to the Trustee with an Officers’ Certificate stating that such Board of Directors has determined that Affiliate Transaction complies with clause (a) above, and
(b) in connection with any Receivables Facilityexcess of $15.0 million unless, prior to the consummation thereof, the Company shall have received an opinion, from an independent nationally recognized firm experienced in the appraisal or similar review of similar types of transactions, that such transaction or series of related transactions is on terms which are fair, from a financial point of view, to the Company or such Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (St Charles Gaming Co Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless (Ba) such transaction or series of related transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million1,000,000, the Company obtains and promptly delivers an Officers' Certificate to the Trustee a resolution Noteholders certifying that such transaction or series of its Board related transactions complies with clause (a) above and such transaction or series of Directors (including transactions has been approved by a majority of the disinterested members board of directors of the Board Company, (c) with respect to any transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $5.0 million2,000,000, such transaction or series of related transactions has been approved by the Disinterested Directors of the Company obtains (or in the event there is only one Disinterested Director, by such Disinterested Director) and (d) with respect to any transaction or series of related transactions involving aggregate payments in excess of $5,000,000, such transaction or series of related transactions has been approved by the Disinterested Directors of the Company (or in the event there is only one Disinterested Director, by such Disinterested Director) and the Company delivers to the Noteholders a written opinion from of an Independent Financial Advisor investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; PROVIDED, HOWEVER, that the provision with respect to exist the following:
clause (1d) above shall not apply to (A) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made entered into in the ordinary course of business and consistent (including compensation or employee benefit arrangements with the past practices any officer or director of the Company Company) or such Restricted Subsidiary(B) any agreements, transactions or series of related transactions in existence on the date of this Agreement and any renewal or extension thereof under substantially the same terms as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityoriginal terms.
Appears in 1 contract
Sources: Senior Subordinated Note Purchase Agreement (Hanger Orthopedic 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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless such transaction or series of related transactions is entered into in good faith and in writing and (Ba) no such transaction or series of related transactions is on terms that are not substantially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million5,000,000, such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $10,000,000, the Company obtains and promptly delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; PROVIDED, HOWEVER, that this provision shall not apply to exist the following:
(1) employment agreements and employee benefit arrangements with any transaction officer or series director of transactions between the Company and one Company, including under any stock option or more Restricted Subsidiaries or between two or more Restricted Subsidiaries stock incentive plans, entered into in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans Subsidiary and advances do not exceed $1.0 million (2) transactions pursuant to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and date of this Indenture, including amendments thereto entered into after that date, provided that the terms of any modifications, extensions or renewals thereto that such amendment are no not less favorable to the Company or any such Restricted Subsidiary than the terms of such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityprior to such amendment.
Appears in 1 contract
Sources: Indenture (Fca of Ohio Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance or exchange of any Property property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company other than a Restricted Subsidiary (each, other than a Restricted Subsidiary, being an "AFFILIATE TRANSACTIONInterested Person"), unless:
unless (1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that unrelated third parties who are not Interested Persons, or, in the event no comparable transaction with an unrelated third party who is not an Affiliate Interested Person is available, on terms that are fair from a financial point of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers view to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million (b) with respect to any one employee transaction or series of related transactions involving aggregate payments in excess of $10,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (a) above and such transaction or series of transactions has been approved by the Board of Directors and (c) with respect to any one transaction or series of related transactions involving aggregate payments in excess of $5.0 million 20,000,000, the Officers' Certificate referred to in clause (b) above also includes a certification that such transaction or series of transactions has been approved by a majority of the Disinterested Directors (either of the full Board of Directors or, in the aggregate case of action by a committee thereof, of such committee) or, in the event there are no such Disinterested Directors, that the Company has obtained a written opinion from an independent nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and subject matter of the transaction or series of related transactions at issue, which opinion shall be to the effect set forth in clause (a) above; provided, however, that this covenant will not restrict the Company from (i) paying reasonable and customary regular compensation and fees to directors of the Company who are not employees of the Company or any one time outstanding;
Restricted Subsidiary, (5ii) agreements in effect paying dividends on, or making distributions with respect to, shares of Capital Stock of the Company on a pro rata basis to the Issue Date and any modificationsextent permitted by Section 9.10 hereof, extensions or renewals thereto (iii) Restricted Payments that are no less favorable permitted by Section 9.10 hereof, (iv) making loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary than such agreement as made in effect on the Issue Date; and
(6) sales ordinary course of accounts receivable, or participations therein, business and consistent with customary practices in connection with any Receivables Facility.the Oil and Gas Business in an aggregate amount not to exceed
Appears in 1 contract
Sources: Indenture (Pogo Producing Co)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company or any beneficial owner of 5% or more of any class of the Capital Stock of the Company at any time outstanding (an "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1a) the such transaction is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is third parties who are not an Affiliate Interested Persons and (b) the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions entered into after the Company;
(2) if such Affiliate Transaction involves Closing Date involving aggregate payments or value in excess of $1.0 3 million, the Company obtains and promptly delivers to the Trustee a resolution of its the Board of Directors of the Company set forth in an officers' certificate certifying that such transaction or transactions complies with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) Company and (a)(1)(Bii) above; and
(3) if such Affiliate Transaction involves with respect to a transaction or series of related transactions involving aggregate payments equal to or value in excess of greater than $5.0 5 million, the Company obtains a written opinion from an Independent Financial Advisor that as to the transaction is fair fairness to the Company and or such Restricted Subsidiary of such transaction or series of transactions from a financial point of view issued by an accounting, appraisal or investment banking firm, in each case of national standing. The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard the Company from paying reasonable and customary regular compensation and fees to the foregoing limitations, directors of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director who are not employees of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiary;
(4C) loans and advances to employees made in transactions permitted by the ordinary course provisions of business and consistent with Section 1011; and
(D) the past practices performance of the Company or such Restricted SubsidiaryCompany's obligations under the Technical Assistance Agreement, as in effect at the case may beClosing Date, PROVIDED that such loans and advances do in an annual amount not to exceed $1.0 million 1 million; provided that any amendments or modifications to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on terms of the Issue Date and any modifications, extensions or renewals thereto that Technical Assistance Agreement are no less favorable to the Company or any Restricted Subsidiary than such agreement as those that could have been obtained in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection an arm's length transaction with any Receivables Facilitythird parties who are not Interested Persons.
Appears in 1 contract
Sources: Indenture (Ameristeel Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall not nor will it permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company unless: (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could reasonably be obtained obtainable at such time in a comparable transaction in arm's-length dealings with an unrelated third party, and (ii) the Company delivers to the Trustee (A) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves transactions involving aggregate payments or value in excess of $1.0 million250,000, the Company obtains and promptly delivers to the Trustee a resolution an Officers' Certificate certifying that such transaction or series of its Board of Directors (including related transactions has been approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying thatDirectors of the Company, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(BB) above; and
(3) if such Affiliate Transaction involves with respect to any transaction or series of transactions involving aggregate payments or value in excess of $5.0 million, an opinion as to the Company obtains a written opinion from an Independent Financial Advisor that fairness of the transaction is fair to the Company and the Restricted Subsidiariesfrom a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) Without regard to Notwithstanding the foregoing limitationsforegoing, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingprovisions of clause (a) above do not apply to:
(1i) any transaction employment agreements or series of transactions between the Company and one compensation or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangementsarrangements with any officer, with an officer director or director employee of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made entered into in the ordinary course of business (including customary benefits thereunder and consistent with the past practices including reimbursement or advancement of out-of-pocket expenses, and director's and officer's liability insurance);
(ii) any transaction entered into by or among the Company or such one of its Restricted Subsidiary, as Subsidiaries with one or more Restricted Subsidiaries of the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingCompany;
(5iii) any transaction permitted by clause (b) of Section 4.10;
(iv) transactions permitted by, and complying with, the provisions described under Section 5.01;
(v) any Transaction or any transaction described under the caption "Use of Proceeds" in the Offering Circular pursuant to which the Initial Notes are offered and sold; and
(vi) agreements to make the payments described in effect on clause (y)(2) of the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to second sentence of the Company or any Restricted Subsidiary than such agreement definition of the term "Investment" (as defined in the 2007 Indenture (as in effect on the Issue Date; and
)). As of the Issue Date, the cash salary and bonus in the aggregate payable to Jack Bendheim in respect of each fiscal year (6i) sales for which Cash Flo▇ ▇▇ ▇▇▇ ▇▇▇▇r fiscal year is less than $25.0 million shall be capped at $750,000, (ii) for which Cash Flow of accounts receivablethe prior fiscal year is greater than or equal to $25.0 million but less than $36.0 million, shall not exceed the sum of (A) $750,000 plus (B) (1) $900,000 times (2) a ratio, the numerator of which is Cash Flow with respect to such prior fiscal year less $25.0 million and the denominator of which is $11.0 million and (iii) for which Cash Flow of the prior fiscal year is greater than or participations thereinequal to $36.0 million, in connection with any Receivables Facilityshall be determined by the Compensation Committee of the Board of Directors and shall not exceed $2.0 million.
Appears in 1 contract
Sources: Indenture (Pahc Holdings Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries unless (an "AFFILIATE TRANSACTION"), unless:
(1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is third parties who are not an Affiliate Affiliates and (b) either (i) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million5,000,000, but less than $10,000,000, the Company obtains and promptly delivers a resolution of the Board of Directors of the Company set forth in an Officers' Certificate to the Trustee a resolution certifying that such transaction or series of its related transactions comply with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Company or (ii) with respect to a transaction or series of related transactions involving aggregate payments equal to or greater than $10,000,000, the Company delivers to the Trustee (x) an Officers' Certificate certifying that such transaction or series of related transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) of the Company and (a)(1)(By) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor a nationally recognized accounting or investment banking firm to the effect that the such transaction is or series of related transactions are fair to the Company and or such Restricted Subsidiary from a financial point of view. The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard to the foregoing limitationsCompany from paying reasonable and customary regular compensation or fees to, or entering into customary expense reimbursement, indemnification or similar arrangements with, directors of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director who are not employees of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiary;
(4C) loans transactions permitted by the provisions of Section 1011;
(D) transactions among the Company, the Parent and advances Laid▇▇▇ ▇▇▇suant to employees the Stock Purchase Agreement; or
(E) any payments made by the Company or a Restricted Subsidiary to the Parent or Laid▇▇▇ ▇▇ transactions entered into among the Company, any Restricted Subsidiary and the Parent and/or Laid▇▇▇ ▇▇▇suant to customary financial and management service arrangements (including, without limitation, general liability and workers' compensation insurance, income tax management and treasury services); provided, however, that each such payment or transaction is (a) in the ordinary course of business and consistent with past practice prior to the past practices date of the Indenture and (b) upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, PROVIDED than could have been obtained in a comparable arm's length transaction with a Person that such loans and advances do is not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to an Affiliate of the Company or any such Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilitySubsidiary.
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
other than the Company or a Majority Owned Restricted Subsidiary) unless such transaction or -121- 135 series of related transactions is entered into in good faith and in writing and (1) the (a) such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, and (b) the Company delivers an officers' certificate to the Trustee certifying that such transaction or series of related transactions complies with a Person that is not an Affiliate clause (1)(a) of the Company;
this Section, (2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 5 million, such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, and (3) with respect to any transaction or series of related transactions involving aggregate value in excess of $10 million, the Company obtains and promptly delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer from a financial point of view; provided, however, that this provision shall not apply to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation employment agreements and employee benefit arrangements, arrangements with an any officer or director of the Company Company, including under any stock option or any of the Restricted Subsidiaries in his or her capacity as an officer or directorstock incentive plans, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made entered into in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million (2) transactions pursuant to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and date of this Indenture, including amendments thereto entered into after that date, provided that the terms of any modifications, extensions or renewals thereto that such amendment are no not less favorable to the Company or any such Restricted Subsidiary than the terms of such agreement as in effect on the Issue Date; and
prior to such amendment or (63) sales of accounts receivable, any Permitted Payment or participations therein, in connection with any Receivables FacilityRestricted Payment which is permitted to be made under Section 1009.
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"other than the Company or a Restricted Subsidiary, including any Person that becomes a Restricted Subsidiary as a result of such transaction), unless:
(1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person that is not an Affiliate of the Companyunrelated third party;
(2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains delivers an Officer’s Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above; and
(3) with respect to any transaction or series of related transactions involving aggregate value in excess of $15.0 million, either
(a) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or
(b) the Company delivers to the Trustee a written opinion from of an Independent Financial Advisor investment banking firm of national standing or other recognized independent expert stating that the transaction or series of related transactions is fair to the Company and the or such Restricted Subsidiaries.Subsidiary from a financial point of view; provided, however, that this provision shall not apply to:
(bi) Without regard to the foregoing limitationsdirectors’ fees, consulting fees, employee salaries, bonuses or employment agreements, incentive arrangements, compensation or employee benefit arrangements with any officer, director or employee of the Company or a Subsidiary of the Company, including under any Restricted Subsidiary may enter into stock option or suffer to exist the following:
(1) any transaction stock incentive plans, customary indemnification arrangements with officers, directors or series employees of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries a Subsidiary of the Company, in each case entered into in the ordinary course of business, PROVIDED ;
(ii) any Restricted Payments made in compliance with Section 4.04 or any Permitted Investment in a Person that no more than 5% is an Affiliate solely as a result of the total voting power Company’s and its Restricted Subsidiaries’ Investments in such Person;
(iii) any Qualified Securitization Transaction;
(iv) any issuance or sale of Qualified Capital Stock of the Voting Stock Company to Affiliates;
(on v) transactions among the Company and/or any Restricted Subsidiary and/or any entity that is an Affiliate solely as a fully diluted basis) result of any Investment by the Company and/or such Restricted Subsidiary is owned by an Affiliate in such entity;
(vi) loans or advances to employees or consultants of the Company in the ordinary course of business for bona fide business purposes of the Company and its Restricted Subsidiaries (other than a Restricted Subsidiary)including, without limitation, travel, entertainment and moving expenses) made in compliance with applicable law;
(2vii) any Restricted Payment permitted to be made transactions undertaken pursuant to Section 4.08 any agreements (including, without limitation, pursuant to the Sponsor Management Agreement) in existence on the Issue Date and described in this offering memorandum and any renewals, replacements or any Permitted Investmentmodifications of such contracts (pursuant to new transactions or otherwise) on terms not materially less favorable when taken as a whole to the holders of the Notes than those in effect on the Issue Date;
(3viii) any transactionthe existence of, including compensation and employee benefit arrangements, with an officer or director of the performance by the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved their obligations under the terms thereofof, any stockholders agreement, principal investors 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 (viii) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous to the holders when taken as a whole;
(4ix) loans and advances to employees made the Transactions;
(x) 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 otherwise in compliance with the past practices terms of this Indenture which are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Company’s Board of Directors or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(xi) payments by the Company or any of its Restricted Subsidiaries to any of the Sponsors 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 in good faith by Disinterested Directors constituting a majority of such Disinterested Directors;
(xii) payments or loans (or cancellation of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, severance arrangements, stock option plans and other similar arrangements with such employees or consultants which, in each case, are approved by a majority of the Board of Directors of the Company in good faith; and
(xiii) Investments by the Sponsors in debt securities of the Company or such any of its Restricted Subsidiary, Subsidiaries so long as (x) the case may be, PROVIDED that such loans and advances do not exceed $1.0 million Investment is being offered generally to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect other investors on the Issue Date same or more favorable terms and any modifications, extensions (y) the Investment constitutes less than 5.0% of the proposed or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than outstanding issue amount of such agreement as in effect on the Issue Date; and
(6) sales class of accounts receivable, or participations therein, in connection with any Receivables Facilitysecurities.
Appears in 1 contract
Sources: Indenture (Tops PT, LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company or any Restricted Subsidiary unless (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would reasonably be obtained expected to be available in a comparable arm'stransaction in arm’s-length dealings with an unrelated third party, and (ii) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 50.0 million, the Company obtains and promptly delivers an Officers’ Certificate to the Trustee a resolution certifying that such transaction or series of its Board related transactions complies with clause (i) above and such transaction or series of Directors (including related transactions has been approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction Directors of the Company (and certifying thatapproved by a majority of the Independent Directors or, in its good faith judgmentthe event there is only one Independent Director, by such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted SubsidiariesDirector).
(b) Without regard Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the foregoing limitationsCompany (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries Subsidiaries, (iii) transactions pursuant to agreements existing on the Issue Date and any amendment to or between two extensions or more replacements thereof on terms not materially less favorable to the Company, (iv) Restricted Subsidiaries in the ordinary course Payments and Permitted Investments, (v) issuances of business, PROVIDED that no more than 5% equity of the total voting power of the Voting Stock Company, (on a fully diluted basisvi) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of transactions in which the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED delivers to the Trustee a letter from an independent financial advisor stating that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable transaction is fair to the Company or any such Restricted Subsidiary than from a financial point of view or meets the requirements of clause (i) of the preceding paragraph, (vii) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such agreement Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, (viii) any customary transaction with a Securitization Subsidiary effected as in effect on the Issue Date; and
(6) sales part of accounts receivable, a Qualified Securitization Financing or participations therein, Receivables Facility and any disposition of Securitization Assets or related assets in connection with any Receivables FacilityQualified Securitization Financing and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation, (ix) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not entered into in contemplation of such redesignation) and (x) any transaction or series of related transactions involving aggregate payments of $25.0 million or less.
Appears in 1 contract
Sources: Indenture (Gray Television Inc)
Limitation on Transactions with Affiliates. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets or property, transfer, assignment, lease, conveyance or exchange of any Property employee compensation arrangements or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), Issuer or of any Restricted Subsidiary unless:
(1i) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) are no less favorable to the Company Issuer or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'sarm’s-length transaction with third parties that are not Affiliates;
(ii) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than €10 million, the Issuer (or if the Issuer’s board of directors does not consist of natural persons, Invitel) will deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (i) of this Section 4.09(a) and that the fairness of such transaction has been approved by a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the board of directors of the Issuer (or if the Issuer’s board of directors does not consist of natural persons, of Invitel); and
(iii) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than €20 million, the Issuer will deliver to the Trustee a written opinion, in form and substance satisfactory to the Trustee, of an investment banking firm, appraisal firm or accounting firm of international standing stating that the transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary from a financial point of view, or is not less favorable to the Issuer or such Restricted Subsidiary than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person that is who was not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted SubsidiariesAffiliate.
(b) Without regard to Notwithstanding the foregoing limitationsforegoing, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingrestrictions set forth in this description will not apply to:
(1i) any transaction customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or series employee benefit arrangements, including stock options or legal fees, so long as the board of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% directors of the total voting power Issuer (or if the Issuer’s board of directors does not consist of natural persons, of Invitel) has approved the Voting Stock (on a fully diluted basis) of any terms thereof and deemed the services theretofore or thereafter to be performed for such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary)compensation or payments to be fair consideration therefor;
(2ii) any Restricted Payment permitted Payments not prohibited by Section 4.07 (but only to be the extent included in the calculation of the amount of Restricted Payments made pursuant to such Section 4.08 4.07, or any the making of an Investment that is a Permitted Investment), but not a Permitted Investment under clause (c)(iii) of the definition of Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4iii) loans and advances (but not any forgiveness of such loans or advances) to the Issuer’s or any Restricted Subsidiary’s officers, directors and employees for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED provided that such loans and advances do not exceed $1.0 million to any one employee and $5.0 €2.0 million in the aggregate at any one time outstanding;
(5iv) agreements in effect and arrangements existing on the Issue Date date of this Indenture and any modificationsamendment, extensions modification or renewals thereto supplement thereto, provided that are no less favorable any such amendment, modification or supplement to the Company terms thereof is not more disadvantageous to the Holders of the Notes and to the Issuer or Restricted Subsidiary, as applicable, in any Restricted Subsidiary material respect than such the original agreement or arrangement as in effect on the Issue Datedate of this Indenture and provided, further, that such amendment or modification is (A) on a basis substantially similar to that which would be conducted in an arm’s-length transaction with third parties who are not Affiliates of the Issuer and (B) in the case of any transaction having a Fair Market Value of greater than €10.0 million, approved by the board of directors of the Issuer (or if the Issuer’s board of directors does not consist of natural persons, of Invitel) (including a majority of the Disinterested Directors);
(v) any payments or other transactions pursuant to a tax sharing agreement between the Issuer and any other Person with which the Issuer files a consolidated tax return or with which the Issuer is part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation;
(vi) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the board of directors of the Issuer (or if the Issuer’s board of directors does not consist of natural persons, of Invitel);
(vii) the granting and performance of registration rights for the Issuer’s securities;
(viii) the issuance of any Subordinated Shareholder Funding; and
(6ix) sales transactions between or among the Issuer and its Restricted Subsidiaries or between or among Restricted Subsidiaries of accounts receivable, or participations therein, in connection with any Receivables Facilitythe Issuer.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance or exchange of any Property property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company other than a Restricted Subsidiary (each, other than a Restricted Subsidiary, being an "AFFILIATE TRANSACTIONInterested Person"), unless:
unless (1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that unrelated third parties who are not Interested Persons, or, in the event no comparable transaction with an unrelated third party who is not an Affiliate Interested Person is available, on terms that are fair from a financial point of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers view to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million (b) with respect to any one employee transaction or series of related transactions involving aggregate payments in excess of $10,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (a) above and such transaction or series of transactions has been approved by the Board of Directors and (c) with respect to any one transaction or series of related transactions involving aggregate payments in excess of $5.0 million 20,000,000, the Officers' Certificate referred to in clause (b) above also includes a certification that such transaction or series of transactions has been approved by a majority of the Disinterested Directors (either of the full Board of Directors or, in the case of action by a committee thereof, of such committee) or, in the event there are no such Disinterested Directors, that the Company has obtained a written opinion from an independent nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and subject matter of the transaction or series of related transactions at issue, which opinion shall be to the effect set forth in clause (a) above; provided, however, that this covenant will not restrict the Company from (i) paying reasonable and customary regular compensation and fees to directors of the Company who are not employees of the Company or any Restricted Subsidiary, (ii) paying dividends on, or making distributions with respect to, shares of Capital Stock of the Company on a pro rata basis to the extent permitted by Section 9.10 hereof, (iii) Restricted Payments that are permitted by Section 9.10 hereof, (iv) making loans or advances to officers, directors and employees of the Company or any Restricted 95 Subsidiary made in the ordinary course of business and consistent with customary practices in the Oil and Gas Business in an aggregate amount not to exceed $1,000,000 outstanding at any one time outstanding;
time, (5v) agreements making any indemnification or similar payment to any director or officer (A) in effect on accordance with the Issue Date corporate charter or bylaws of the Company or any Restricted Subsidiary, (B) under any agreement or (C) under applicable law and any modifications, extensions or renewals thereto that are no less favorable to (vi) fulfilling obligations of the Company or any Restricted Subsidiary than such agreement as under employee compensation and other benefit arrangements entered into or provided for in effect on the Issue Date; and
(6) sales ordinary course of accounts receivable, or participations therein, in connection with any Receivables Facilitybusiness.
Appears in 1 contract
Sources: Indenture (Pogo Producing Co)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless (Ba) such transaction or series of transactions is in writing on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length transaction dealings with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains unrelated third party and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard (i) with respect to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between involving aggregate payments in excess of $1,000,000, the Company delivers an officers' certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above and one such transaction or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course series of business, PROVIDED that no more than 5% related transactions has been approved by a majority of the total voting power members of the Voting Stock (on a fully diluted basis) Board of any such Restricted Subsidiary is owned by an Affiliate Directors of the Company (other than and approved by a majority of Independent Directors or, in the event there is only one Independent Director, by such Independent Director) and (ii) with respect to any transaction or series of transactions involving aggregate payments in excess of $5,000,000, an opinion as to the fairness to the Company or such Restricted Subsidiary);
Subsidiary from a financial point of view issued by an investment banking firm of national standing. Notwithstanding the foregoing, this provision will not apply to (2A) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, transaction with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made entered into in the ordinary course of business and consistent (including compensation or employee benefit arrangements with any officer or director of the past practices of Company), (B) any transaction entered into by the Company or such one of its Wholly Owned Restricted SubsidiarySubsidiaries with a Wholly Owned Restricted Subsidiary of the Company, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million (C) transactions in the aggregate at any one time outstanding;
(5) agreements in effect existence on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to date of the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
Supplemental Indenture. (6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.Section 1010)
Appears in 1 contract
Sources: Underwriting Agreement (Sinclair Broadcast Group Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guaranty with, or for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTIONAffiliate Transaction"), unlessexcept for:
(1i) the Affiliate Transactions that, together with all related Affiliate Transactions, have an aggregate value of not more than $2,000,000; provided, that (i) such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time by the Company or such Restricted Subsidiary on an arm's-length transaction with basis from a Person that is not an Affiliate of the CompanyCompany or such Restricted Subsidiary and (ii) prior to entering into such transaction the Company shall have delivered to the Trustee an Officers' Certificate certifying to such effect;
(2ii) if such Affiliate Transaction involves Transactions that, together with all related Affiliate Transactions, have an aggregate payments or value in excess of not more than $1.0 million5,000,000; pro vided, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors that (including i) a majority of the disinterested members of the Board of Directors) approving Managers determine that such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such agreement time by the Company or such Restricted Subsidiary on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary and (ii) prior to entering into such transaction the Company shall have delivered to the Trustee an Officers' Certificate certifying to such effect; or
(iii) Affiliate Transactions for which the Company delivers to the Trustee an opinion as in effect on to the Issue Datefairness to the Company or such Restricted Subsidiary from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. Notwithstanding the foregoing, the following shall be deemed not to be Affiliate Transactions:
(a) Restricted Payments permitted by Section 4.7 hereof;
(b) payments pursuant to the Berthing Agreement;
(c) the non-exclusive licensing of any service ▇▇▇▇ of the Company to an Affiliate or Affiliates of the Company; and
(6d) sales transactions between or among the Company and any Wholly Owned Subsidiary of accounts receivable, or participations therein, in connection with any Receivables Facilitythe Company.
Appears in 1 contract
Sources: Indenture (Majestic Star Casino LLC)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or a Wholly Owned Subsidiary) unless such Restricted Subsidiary, as the case may be, and
transaction or series of related transactions is entered into in good faith and in writing and (Ba) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained reasonably expected to be available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 3.0 million, the Company obtains delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above, and promptly (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $7.0 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction transactions or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; provided, however, that this provision shall not apply to: (a) compensation and employee benefit arrangements with any officer, director or employee of the Restricted Subsidiaries.
Company, including under any stock option or stock incentive plans, in the ordinary course of business; (b) Without regard to any transaction solely between or among the foregoing limitationsCompany and/or any Restricted Subsidiaries, if such transaction is otherwise in compliance with this Indenture and is on fair and reasonable terms; (c) any transaction otherwise permitted by the terms of the section of this Indenture described in Section 1009; (d) the execution and delivery of or payments made under any tax sharing agreement between or among any of the Company and any Restricted Subsidiary; (e) licensing or sublicensing of use of any intellectual property by the Company or any Restricted Subsidiary may enter to any Restricted Subsidiary of the Company; provided that the licensor shall continue to have access to such intellectual property to the extent necessary for the conduct of its respective business; (f) arrangements between the Company and any Restricted Subsidiary of the Company for the purpose of providing services or employees to such Restricted Subsidiary; (g) any transaction entered into for the purpose of granting or suffer altering registration rights with respect to exist the following:
Capital Stock of the Company; and (1h) any transaction or series of related transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable entered into prior to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitydate hereof.
Appears in 1 contract
Sources: Indenture (Concentric Network Corp)
Limitation on Transactions with Affiliates. (a) The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of any Property assets, property or services), other than as provided for in the rendering of any service) Operative Agreements, with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION")Partnership, unless:
unless (1) such transaction or series of related transactions is between the Partnership and its Wholly Owned Restricted Subsidiaries or between two Wholly Owned Restricted Subsidiaries or (2) (a) such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company Partnership or such Restricted Subsidiary, as the case may be, than those that could be which would have been obtained in a comparable arm's-length transaction with a Person that is at such time from Persons who are not an Affiliate Affiliates of the Company;
Partnership or a Restricted Subsidiary and (2b) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments or value in excess of equal to or greater than $1.0 15 million, the Company obtains and promptly delivers Partnership shall have delivered an Officers’ Certificate to the Trustee certifying that such transaction or series of transactions complies with the preceding clause (a) and that such transaction or series of transactions has been approved by a resolution majority of its the Board of Directors of the General Partner (including a majority of the disinterested members of Disinterested Directors); provided, however, that this Section 10.11 will not restrict the Board of Directors) approving such Affiliate Transaction and certifying thatPartnership, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter or the General Partner from entering into or suffer to exist the following:
(1A) any transaction employment agreement, stock option agreement, restricted stock agreement or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries other similar agreement in the ordinary course of business, PROVIDED that no more than 5% (B) transactions permitted by the provisions of the total voting power of the Voting Stock this Indenture set forth in Sections 10.10 hereof and (on a fully diluted basisC) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made transactions in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityreinsuring the self-insurance programs or other similar forms of retained insurable risks of the Permitted Business operated by the Partnership.
Appears in 1 contract
Sources: Indenture (Amerigas Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1a) the such transaction is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable an arm's-length transaction with a Person that is third parties who are not an Affiliate Interested Persons and (b) the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions entered into after the Company;
(2) if such Affiliate Transaction involves Closing Date involving aggregate payments or value in excess of $1.0 million500,000, the Company obtains and promptly delivers to the Trustee a resolution of its the Board of Directors of the Company set forth in an Officers' Certificate certifying that such transaction or transactions complies with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) Company and (a)(1)(Bii) above; and
(3) if such Affiliate Transaction involves with respect to a transaction or series of related transactions involving aggregate payments equal to or value greater than $1.0 million (except in excess the case of $5.0 millionthe SATH Transaction), the Company obtains a written opinion from an Independent Financial Advisor that as to the transaction is fair fairness to the Company and or such Restricted Subsidiary of such transaction or series of transactions from a financial point of view issued by a nationally recognized investment banking firm. The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard the Company from paying reasonable and customary regular compensation, fees and indemnification to directors of the foregoing limitations, Company or any wholly owned Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:Subsidiary;
(1C) any transaction loans or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries advances to employees in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6D) sales transactions permitted by the provisions of accounts receivable, or participations therein, in connection with any Receivables FacilitySection 1011.
Appears in 1 contract
Sources: Indenture (Shop at Home Inc /Tn/)
Limitation on Transactions with Affiliates. (a) The Company Issuers shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, with any holder (or for the benefit of, any Affiliate of such holder) of 10% or more of any class of Capital Stock of the Company Parent or with any Affiliate of an Issuer or any Restricted Subsidiary (an "AFFILIATE TRANSACTION"“Affiliate Transaction”), unless:
in each case involving consideration in excess of the greater of (1x) $75.0 million and (y) 1.75% of consolidated Adjusted Total Assets of the Issuers and the Restricted Subsidiaries, except upon terms that are not (as determined by a majority of the disinterested directors of the Board of Directors of the Parent, or where no such Affiliate Transaction are
(Adisinterested directors exist, by unanimous approval of the directors of the Board of Directors of the Parent) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no materially less favorable to the Company Issuers or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-arm’s length transaction with a Person that is not such a holder or an Affiliate Affiliate, or if in the good faith judgment of the Company;Parent’s Board of Directors, no comparable transaction is available with which to compare such transaction, such transaction is otherwise fair to the Issuers or such Restricted Subsidiary from a financial point of view.
(2b) if such Affiliate Transaction involves aggregate payments The foregoing limitation does not limit, and shall not apply to:
(1) transactions for which the Parent or value in excess of $1.0 million, the Company obtains and promptly any Restricted Subsidiary delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company Parent or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate from a financial point of the Company (other than a Restricted Subsidiary)view;
(2) any transaction solely between an Issuer and any of its Restricted Payment permitted to be made pursuant to Section 4.08 Subsidiaries or any Permitted Investmentsolely between Restricted Subsidiaries;
(3) the payment of reasonable fees and compensation (including through the issuance of Capital Stock of the Parent (including the issuance of restricted shares and restricted share units pursuant to Parent's amended and restated restricted share plan), the issuance of any transactionunits of limited partner interest in the Opco, including compensation the LTIP Units and employee benefit arrangementsOP Units, pursuant to the 2018 Operating Partnership Plan or any successor multi-year outperformance agreement entered into with an officer the Advisor or director its affiliates, in each case, as amended, modified, supplemented or replaced from time-to-time) to, and indemnification and similar arrangements on behalf of, current, former or future directors, officers, employees or consultants of the Company Issuers, any Restricted Subsidiary, the Advisor or AR Global or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereoftheir respective affiliates;
(4) loans and advances to employees made in the ordinary course issuance or sale of business and consistent with the past practices Capital Stock (other than Disqualified Stock) of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingParent;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement Payments not prohibited by Section 4.7 hereof and Investments constituting Permitted Investments;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the Issue Date, including but not limited to the Advisory Agreement and the Management Agreement, and any transactions pursuant thereto or contemplated thereby, and (i) any amendment, modification or supplement thereto or any replacement thereof entered into from time-to-time, (ii) any management and leasing agreement entered into after the Issue Date between any Restricted Subsidiary and the Property Manager, in each case, as long as any such agreement or arrangement as so amended, modified, supplemented or replaced, or any such management or leasing agreement entered into after the Issue Date, is determined in good faith by a majority of the independent directors of the Board of Directors of the Parent to be fair to, and in the best interest of, the Issuers and their Restricted Subsidiaries taken as a whole;
(7) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by an Issuer or any Restricted Subsidiary with current, former or future officers, directors and employees of an Issuer or such Restricted Subsidiary and the payment of compensation and reimbursement of expenses and the providing of other benefits (including retirement, health, disability, option, deferred compensation, insurance and other employment benefits) to officers, directors and employees of an Issuer or any Restricted Subsidiary (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the ordinary course of business;
(8) loans and advances to directors, officers, employees, members, managers and consultants of the Issuers, any Restricted Subsidiary, the Advisor or AR Global or any of their respective affiliates or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), in each case, for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business;
(9) transactions with a Person that is an Affiliate of the Issuers solely because an Issuer, directly or indirectly, owns Capital Stock of, or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(11) the entering into or amending of any tax sharing, allocation or similar agreement and any payments thereunder; and
(612) sales transactions between the Issuers or any of accounts receivablethe Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of such Person is also a director of an Issuer or any Restricted Subsidiary; provided, however, that such director abstains from voting as a director of such Issuer or participations therein, in connection with Restricted Subsidiary on any Receivables Facilitymatter involving such other Person.
Appears in 1 contract
Sources: Indenture (Global Net Lease, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guarantee with, or for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTION"), unless:
except for (1i) the Affiliate Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate value of not more than $1.0 million; PROVIDED, that such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time on an arm's-length transaction with basis from a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, (2ii) if such Affiliate Transaction involves Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate payments or value in excess of not more than $1.0 2.0 million; PROVIDED, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including that a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate Directors of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors determine that such transactions are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at such agreement time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary and (iii) Affiliate Transactions for which the Company delivers to the Trustee an opinion as in effect on to the Issue Datefairness to the Company or such Restricted Subsidiary from a financial point of view, issued by an investment banking firm of national standing; and
(6) sales of accounts receivablePROVIDED, or participations thereinHOWEVER, in connection with any Receivables Facility.that the following will not be deemed to be Affiliate 45
Appears in 1 contract
Sources: Indenture (Archibald Candy Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist conduct any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or the rendering of any service) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
) on terms (1i) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a comparable arm's-length transaction dealings with a Person that who is not such an Affiliate of Affiliate, (ii) that, in the Company;
(2) if event such Affiliate Transaction involves an aggregate payments or value amount in excess of $1.0 U.S.$1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including have not been approved by a majority of the disinterested members of the Board of Directors) approving Directors having no personal stake in such Affiliate Transaction and certifying (iii) that, in its good faith judgment, the event such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate 47 Transaction involves aggregate payments or value an amount in excess of $5.0 U.S.$5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is have not been determined to be fair to the Company and or such Restricted Subsidiary from a financial point of view pursuant to the Restricted Subsidiarieswritten opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms of the type of transaction or series of related transactions.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
The provisions of paragraph (1a) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock above shall not prohibit (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2i) any Restricted Payment permitted to be made paid pursuant to Section 4.08 or any Permitted Investment;
4.05, (3ii) any transaction, including compensation the payment of reasonable fees to directors of the Company and employee benefit arrangements, with an officer or director its Subsidiaries who are not employees of the Company or its Subsidiaries, (iii) transactions pursuant to the Secondment Agreement, provided that, in the event such transactions involve an aggregate amount exceeding U.S.$10.0 million in any calendar year, such transactions to the extent they exceed U.S.$10.0 million must be approved by a majority of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as members of the Board of Directors in good faith shall have approved the terms thereof;
(4) loans having no personal stake therein and advances must be determined to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable be fair to the Company and the applicable Restricted Subsidiaries from a financial point of view pursuant to a written opinion of an investment banking firm or any Restricted Subsidiary than such agreement other expert as provided in effect on paragraph (a) above, (iv) transactions pursuant to the Issue Date; and
(6) sales of accounts receivableMaster Technical Services Agreement, or participations thereinprovided that, in connection with the event such transactions involve an aggregate amount exceeding U.S.$3.0 million in any Receivables Facility.calendar year, such transactions to the extent they exceed U.S.$
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and
(1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length transaction dealings with a Person that is not an Affiliate of the Company;unrelated third party,
(2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 10.0 million,
(a) the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above, and
(b) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or
(3) with respect to any transaction or series of related transactions involving an aggregate value in excess of $50.0 million, the Company obtains and promptly delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing in the United States or Canada or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter from a financial point of view; PROVIDED, HOWEVER, that this provision shall not apply to: (i) employee benefit arrangements with any officer or director of the Company, including under any stock option or stock incentive plans, and customary indemnification arrangements with officers or directors of the Company, in each case entered into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% (ii) any Restricted Payments made in compliance with Section 1009 above, (iii) transactions effected as part of a Permitted Securitization Transaction, (iv) any fees paid or expenses reimbursed to to directors in the total voting power ordinary course in their capacity as such, (v) any sale or issuance of the Voting Qualified Capital Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate to Affiliates of the Company and (other than a Restricted Subsidiary);
(2vi) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made transactions entered into in the ordinary course of business and consistent with the past practices Affiliates of the Company who are Canadian drugstore franchisees, whether currently owned or such Restricted Subsidiaryafter-acquired, in their capacities as such, for purposes of (a) purchase and sale of inventory for the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivablerelated franchises, or participations therein, in connection with any Receivables Facility(b) entering into the inventory buyback or guarantee arrangements described under clauses (16) and (17) of the definition of "Permitted Indebtedness".
Appears in 1 contract
Sources: Exhibit (Brooks Pharmacy, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guarantee with, or 38 40 for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
except for (1i) the Affiliate Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate value of not more than $1.0 million; provided, that such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time on an arm's-length transaction with basis from a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, (2ii) if such Affiliate Transaction involves Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate payments or value in excess of not more than $1.0 5.0 million; provided, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including that a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate Directors of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors determine that such transactions are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would 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 the Company or such Restricted Subsidiary, and (iii) Affiliate Transactions for which the Company delivers to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary from a financial point of view, issued by an investment banking firm of national standing. Notwithstanding the foregoing, the following will not be deemed to be Affiliate Transactions: (i) employment agreements entered into by the Company or any Restricted Subsidiary than such agreement in the ordinary course of business with the approval of a majority of the disinterested members of the Company's Board of Directors, (ii) transactions between or among the Company and/or its Wholly Owned Subsidiaries, (iii) Restricted Payments permitted by Section 4.7 of this Indenture, and (iv) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary as determined in effect on good faith by a majority of the Issue Date; and
(6) sales disinterested directors of accounts receivablethe Company's Board of Directors or, or participations thereinif none, in connection with any Receivables Facilityunanimously by the Board of Directors.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any -86- 92 Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary, as the case may be, and
) unless (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (ii) with respect to a transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves aggregate related transactions involving payments or value in excess of $1.0 million1,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee certifying that such transaction complies with clause (i) above, (iii) with respect to a resolution transaction or series of its Board related transactions involving payments in excess of Directors $5,000,000 but less than $25,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (including A) such transaction or series of related transactions complies with clause (i) above and (B) such transaction or series of related transactions shall have been approved by a majority of the disinterested members Disinterested Directors of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) Company and (a)(1)(Biv) above; and
(3) if such Affiliate Transaction involves aggregate with respect to a transaction or series of related transactions involving payments or value in excess of $5.0 million25,000,000 or more in the aggregate, the Company obtains delivers an Officers' Certificate to the Trustee certifying that (A) such transaction or series of related transactions complies with clause (i) above, (B) such transaction or series of related transactions shall have been approved by a majority of the Disinterested Directors of the Company and (C) the Company shall have received the written opinion of a nationally recognized investment banking firm or appraisal firm in the United States that such transaction or series of related transactions is fair, from an Independent Financial Advisor that the transaction is fair a financial point of view, to the Company and the or such Restricted Subsidiaries.
(b) Without regard to Subsidiary; provided, however, that the foregoing limitationsrestriction shall not apply to (s) the provision of services and payments under the Torch Agreement, so long as the Torch Agreement (including any modifications, renewals, replacements or substitutions thereof or amendments thereto entered into on or after the date of this Indenture) has been approved by a majority of the Disinterested Directors of the Company, (t) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 3,000,000 outstanding at any one time outstanding;
time, (5u) agreements in effect on the Issue Date payment of reasonable and any modifications, extensions or renewals thereto that are no less favorable customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate, (v) the Company's employee compensation and other benefit arrangements, (w) indemnities of officers and directors of the Company or any Subsidiary than consistent with such agreement as in effect on the Issue Date; and
Person's bylaws and applicable statutory provisions or (6x) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityRestricted Payments permitted by Section 10.10 hereof.
Appears in 1 contract
Sources: Indenture (Nuevo Energy Co)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company or any Restricted Subsidiary (an other than the Company or a Restricted Subsidiary) (collectively, "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1i) the such transaction or series of transactions are on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been able to be obtained in a comparable an arm's-length transaction with a Person third parties that is are not an Affiliate Interested Persons, (ii) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments consideration equal to or value in excess of greater than $1.0 million1,000,000, the Company obtains and promptly delivers has delivered an Officers' Certificate to the Trustee a resolution certifying that such transaction or series of its transactions complies with clause (i) above and (iii) with respect to any transaction or series of related transactions involving aggregate consideration equal to or greater than $5,000,000, such transaction or series of related transactions (x) has been approved by the Board of Directors of the Company (including a majority of the disinterested members Disinterested Directors of the Board of DirectorsCompany) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses or (a)(1)(Ay) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains has obtained a written opinion from an Independent Financial Advisor a nationally recognized investment banking or valuation firm certifying that the such transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such its Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view; provided, however, that such this Section 1011 shall not restrict (1) the Company from paying reasonable and customary regular compensation and fees to directors of the Company or any Restricted Subsidiary who are not employees of the Company or any Restricted Subsidiary, (2) the payment of management fees to Permitted Holders in an aggregate amount not to exceed $500,000 per year, (3) loans and advances do to officers, directors and employees of the Company or any Restricted Subsidiary in the ordinary course of business in accordance with the past practices of the Company or any Restricted Subsidiary not to exceed $1.0 million to any one employee and $5.0 million 3,000,000 in the aggregate outstanding at any one time outstanding;
time, (4) any transactions made in compliance with Section 1009, (5) agreements the issuance and sale of Qualified Capital Stock of the Company to Persons who are stockholders of the Company at the time of such issuance and sale and (6) the performance of any written agreement as in effect on the Issue Date date of this Indenture and as amended from time to time, provided that any modifications, extensions or renewals thereto that are no such amendment is not less favorable in any material respect to the Company or any Restricted Subsidiary than the terms of such agreement as in effect on the Issue Date; and
(6) sales date of accounts receivable, or participations therein, in connection with any Receivables Facilitythis Indenture.
Appears in 1 contract
Sources: Indenture (Tmil Corp)
Limitation on Transactions with Affiliates. (a) The Company shall U.S. Borrower will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into into, renew, extend or suffer permit to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property assets or the rendering of any service) with, or for the benefit of, series of related transactions with any Affiliate of the Company U.S. Borrower or any holder of 5% or more of the U.S. Borrower's Capital Stock (other than a Wholly-Owned Subsidiary or employee benefit plan or plan trust) (an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
(1) the on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are less favorable to the Company U.S. Borrower or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that who is not an Affiliate or 5% stockholder of the Company;
U.S. Borrower or such Subsidiary, except for (2i) if such Affiliate Transaction involves aggregate payments a sale to Alberta of the capital stock of Alberta and (ii) transfers of assets and licenses of technology permitted under Section 8.02 (e) (iv) (A) or value in excess of $1.0 million(B). In addition, the Company obtains U.S. Borrower will not, and promptly delivers will not permit any Subsidiary to, enter into an Affiliate Transaction, or any series of related Affiliate Transactions, unless (a) with respect to a transaction or series of related transactions involving aggregate consideration equal to or greater than $6,000,000, such transaction is approved by a majority of the Trustee a resolution of its Board of Directors (of the U.S. Borrower, including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction directors; and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard with respect to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any such transaction or series of related transactions between involving aggregate consideration equal to or greater than $12,000,000, the Company U.S. Borrower has delivered to the Agents and one the Lenders an opinion of a nationally recognized investment banking firm to the effect that such transaction or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in transactions are fair to the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company U.S. Borrower or such Restricted Subsidiary, as the case may be, PROVIDED that such from a financial point of view. Notwithstanding the foregoing, the restrictions set forth in this covenant will not apply to (i) the payment of reasonable and customary regular fees to directors of the U.S. Borrower who are not employees of the U.S. Borrower; (ii) loans and advances do to officers, directors and employees of the U.S. Borrower and the Subsidiaries for travel, entertainment and moving and other relocation expenses made in direct furtherance and in the ordinary course of business of the U.S. Borrower and the Subsidiaries; (iii) any other transaction with any employee, officer or director of the U.S. Borrower or any of the Subsidiaries pursuant to employee benefit or compensation arrangements entered into in the ordinary course of business and approved by the Board of Directors of the U.S. Borrower or the Board of Directors of such Subsidiary permitted by this Agreement; (iv) customary underwriting or similar transactions with an investment banking Affiliate; (v) any transaction entered into in the ordinary course of business with the U.S. Borrower or a Subsidiary; (vi) transactions in the ordinary course of business between the U.S. Borrower and the Subsidiaries permitted by this Agreement; provided, however, the aggregate principal amount of loans and advances made pursuant to clauses (ii) and (iii) of this sentence shall not exceed $1.0 million to any one employee and $5.0 million in the aggregate 6,000,000 at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Sources: Credit Agreement (Evi Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries unless (an "AFFILIATE TRANSACTION"), unless:
(1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is third parties who are not an Affiliate Affiliates and (b) either (i) with respect to any transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million5,000,000, but less than $10,000,000, the Company obtains and promptly delivers a resolution of the Board of Directors of the Company set forth in an Officers' Certificate to the Trustee a resolution certifying that such transaction or series of its related transactions comply with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Company or (ii) with respect to a transaction or series of related transactions involving aggregate payments equal to or greater than $10,000,000, the Company delivers to the Trustee (x) an Officers' Certificate certifying that such transaction or series of related transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) of the Company and (a)(1)(By) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor a nationally recognized accounting or investment banking firm to the effect that the such transaction is or series of related transactions are fair to the Company and or such Restricted Subsidiary from a financial point of view. The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard to the foregoing limitationsCompany from paying reasonable and customary regular compensation or fees to, or entering into customary expense reimbursement, indemnification or similar arrangements with, directors of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director who are not employees of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiary;
(4C) loans transactions permitted by the provisions of Section 1011;
(D) transactions among the Company, Safety-Kleen Services and advances Laid▇▇▇ ▇▇▇suant to employees the Stock Purchase Agreement;
(E) transactions among the Company, Laid▇▇▇ ▇▇▇/or Laid▇▇▇ International Finance Corporation pursuant to the PIK Purchase Agreement;
(F) any payments made by the Company or a Restricted Subsidiary to Laid▇▇▇ ▇▇ transactions entered into among the Company, any Restricted Subsidiary 77 85 and/or Laid▇▇▇ ▇▇▇suant to customary financial and management service arrangements (including, without limitation, general liability and workers' compensation insurance, income tax management and treasury services); provided, however, that each such payment or transaction is (1) in the ordinary course of business and consistent with past practice prior to the past practices date of the Indenture and (2) upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, PROVIDED than could have been obtained in a comparable arm's length transaction with a Person that is not an Affiliate of the Company or such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingRestricted Subsidiary;
(5G) agreements Investments by the Company and its Restricted Subsidiaries in effect Safety-Kleen Europe Limited; provided, however, that each such Investment is (1) being made substantially concurrently with Investments by other Persons (other than management or former management of Safety-Kleen Europe Limited) owning equity interests in Safety-Kleen Europe Limited at the date of such Investment; (2) made on substantially the Issue Date same terms and any modifications, extensions conditions as such Investments being made concurrently by other Persons (other than management or renewals thereto that are former management of Safety-Kleen Europe Limited) owning equity interests in Safety-Kleen Europe Limited at such date; and (3) upon fair and reasonable terms no less favorable to the Company or any such Restricted Subsidiary Subsidiaries, as the case may be, than could have been obtained in a comparable arm's length transaction with a person that is not an Affiliate of the Company or such agreement as in effect on the Issue DateRestricted Subsidiaries; and
(6H) sales transactions among the Company and its Restricted Subsidiaries and (1) Chur▇▇ ▇▇▇▇▇▇ ▇▇., Inc. pursuant to the Partnership Agreement, and (2) the Partnership pursuant to the Sales Agreement; provided, however, that (a) each such transaction is in the ordinary course of accounts receivablebusiness; (b) each such transaction is upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiaries, as the case may be, than could have been obtained in a comparable arm's length transaction with a Person that is not an Affiliate of the Company or participations thereinsuch Restricted Subsidiary; and (c) if any transaction or series of related transactions involving aggregate payments in excess of $5,000,000 is entered into pursuant to the Partnership Agreement and/or the Sales Agreement and such agreement has been amended or replaced since the date of the Indenture, the Company shall deliver to the Trustee a resolution of the Board of Directors of the Company set forth in connection an Officers' Certificate certifying that such transaction or series of related transactions comply with any Receivables Facilitysubparagraph (a) of the first paragraph in this Section 1014 and that such transaction or series of related transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) of the Company.
Appears in 1 contract
Sources: Indenture (Safety Kleen Corp/)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or a Wholly Owned Subsidiary) unless (i) such Restricted Subsidiary, as the case may be, and
(B) transaction or series of transactions is in writing on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length transaction dealings with a Person that is not an Affiliate of the Company;
unrelated third party, (2ii) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers with respect to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between involving aggregate payments in excess of $5,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above and one such transaction or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course series of business, PROVIDED that no more than 5% related transactions has been approved by a majority of the total voting power Disinterested Directors of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors of the Company, and (iii) with respect to any transaction or series of transactions involving aggregate payments in good faith shall have approved the terms thereof;
(4) loans and advances to employees made excess of $10,000,000, or in the ordinary course event no members of business and consistent the Board of Directors of the Company are Disinterested Directors with respect to any transaction or series of transactions included in clause (ii), the past practices Company delivers to the Trustee a written opinion of a nationally recognized investment banking firm or independent appraiser stating that such transaction or transactions is fair to the Company or such Restricted Subsidiary, as the case may be, PROVIDED from a financial point of view; provided, further, that such loans this provision shall not restrict (a) the Company from paying reasonable and advances do not exceed $1.0 million customary regular compensation and fees to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to directors of the Company or any Restricted Subsidiary than such agreement as who are not also employees of the Company or any Subsidiary or (b) transactions between the Company or a Subsidiary of the Company and any Subsidiary or Joint Venture in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitywhich no interest is held by an Affiliate that is not a Subsidiary.
Appears in 1 contract
Sources: Indenture (Us Foodservice/Md/)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of the Company to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, or for the benefit of, with any Affiliate of the Company or any Subsidiary of the Company, except (an "AFFILIATE TRANSACTION"), unless:
(1i) the terms of such Affiliate Transaction are
(A) upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that is not such an Affiliate and (ii) if such transaction is in the best interests of the Company or such Subsidiary, provided that with respect to a transaction or series of related transactions involving aggregate payments by the Company or such Subsidiary having a fair market value equal to or in excess of (a) $1 million but less than $5 million, the Board of Directors of the Company approves such transaction or series of transactions and, in its good faith judgment, believes that such transaction or series of transactions complies with clauses (i) and (ii) of this paragraph as evidenced by a Board Resolution and (b) $5 million, (A) the Company receives the written opinion of a firm of investment bankers nationally recognized in the United States that such transaction (or series of transactions) is fair, from a financial point of view, to the Company or such Subsidiary and (B) the Board of Directors of the Company approves such transaction or series of transactions and, in its good faith judgment, believes that such transaction or series of transactions complies with clauses (i) and (ii) of this paragraph, as evidenced by a Board Resolution. The foregoing limitation does not limit, and will not apply to (i) any transaction between the Company and any Substantially-Owned Subsidiary of the Company or between Substantially-Owned Subsidiaries of the Company; (ii) any transaction between the Company or any Subsidiary of the Company and any Person that is an Affiliate of the Company or of any Subsidiary of the Company, if (u) such Person is engaged in a similar business to that of the Company and its Subsidiaries, (v) such transaction is in the ordinary course of business of the Company or its Subsidiary, as the case may be, and
and such Person, (Bw) such transaction is on fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
Affiliate, (2x) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices best interest of the Company or such Restricted Subsidiary, and (y) such Person is an Affiliate solely by virtue of being directly or indirectly controlled by the Company or a Subsidiary of the Company; (iii) payments not prohibited by Section 1009 solely by virtue of clause (iv) of the first paragraph thereof or payments that are "Restricted Payments" not prohibited by Section 1009; (iv) payments of reasonable and customary fees and salaries of directors and officers of the Company; (v) so long as the case may be1994 Yankee Bonds are outstanding, PROVIDED that such loans and advances do not exceed $1.0 million to or advances, or transfers of any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions property or renewals thereto that are no less favorable assets to the Company or any Restricted Subsidiary than such agreement as in effect on of the Issue DateCompany; and
and (6vi) sales the contribution by the Company of accounts receivable, or participations therein, in connection with any Receivables FacilitySeries A Shares of the Company to the Company's Employee Stock Option Trust.
Appears in 1 contract
Sources: Indenture (Durango Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist conduct any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or the rendering of any service) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless) on terms that:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no are less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a comparable arm's-length transaction dealings with a Person that who is not such an Affiliate of the Company;Affiliate,
(2) if in the event such Affiliate Transaction involves an aggregate payments or value amount in excess of $1.0 U.S.$1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including have not been approved by a majority of the disinterested members of the Board of Directors) approving Directors having no personal stake in such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if that, in the event such Affiliate Transaction involves aggregate payments or value an amount in excess of $5.0 U.S.$5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is have not been determined to be fair to the Company and or such Restricted Subsidiary from a financial point of view pursuant to the Restricted Subsidiarieswritten opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms of the type of transaction or series of related transactions.
(b) Without regard to The provisions of the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingparagraph (a) will not apply to:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made paid pursuant to Section 4.08 4.05,
(2) the payment of reasonable fees to directors of the Company and its Subsidiaries who are not employees of the Company or any Permitted Investment;its Subsidiaries,
(3) transactions pursuant to the Secondment Agreement, provided that, in the event such transactions involve an incurrence in an aggregate amount exceeding U.S.$10.0 million in any transactioncalendar year, including compensation and employee benefit arrangements, with an officer or director such transactions to the extent they exceed U.S.$10.0 million must be approved by a majority of the Company or any members of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors 68 77 having no personal stake therein and must be determined to be fair to the Company and the applicable Restricted Subsidiaries from a financial point of view pursuant to a written opinion of an investment banking firm or other expert as provided in good faith shall have approved the terms thereof;paragraph (a) above,
(4) loans and advances transactions pursuant to employees made the Master Technical Services Agreement, provided that, in the ordinary course of business and consistent with the past practices of the Company or event such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 transactions involve an incurrence in an aggregate amount exceeding U.S.$3.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modificationscalendar year, extensions or renewals thereto that are no less favorable such transactions to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.extent they exceed U.S.$
Appears in 1 contract
Sources: Indenture (Bell Atlantic Corp)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms or any beneficial owner of such Affiliate Transaction are
(A) fair and reasonable to ten percent or more of any class of Capital Stock of the Company or any Restricted Subsidiary unless (i) such Restricted Subsidiary, as the case may be, and
(B) transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would reasonably be obtained expected to be available in a comparable arm'stransaction in arm’s-length dealings with an unrelated third party, and (ii) (a) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 10.0 million, the Company obtains and promptly delivers an Officers Certificate to the Trustee a resolution certifying that such transaction or series of its Board related transactions complies with clause (i) above and such transaction or series of Directors (including related transactions has been approved by a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction Directors (and certifying thatapproved by a majority of the Independent Directors or, in its good faith judgmentthe event there is only one Independent Director, by such Affiliate Transaction complies with clauses (a)(1)(A) Independent Director), and (a)(1)(Bb) above; and
(3) if such Affiliate Transaction involves with respect to any transaction or series of transactions involving aggregate payments or value in excess of $5.0 million20.0 million , the Company obtains a written delivers to the Trustee an opinion from an Independent Financial Advisor to the effect that the such transaction or series of related transactions is fair to the Company and or such Restricted Subsidiary from a financial point of view issued by an investment banking firm or advisory firm of national standing or nationally recognized accounting firm or appraisal firm. Notwithstanding the Restricted Subsidiaries.
foregoing, this provision will not apply to (bi) Without regard to employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the foregoing limitationsCompany (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary may enter into and one or suffer more Restricted Subsidiaries, (iii) transactions pursuant to exist agreements existing on the following:
Issue Date and any amendment to or extensions or replacements thereof on terms not materially less favorable to the Company, (1iv) Restricted Payments and Permitted Investments, (v) issuances of equity of the Company and (vi) any transaction or series of related transactions between the Company and one involving aggregate payments of $2.0 million or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityless.
Appears in 1 contract
Sources: Indenture (Gray Television 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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person that is not an Affiliate of the Company;
unrelated third party, (2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 million, the Company obtains delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above, (3) with respect to any transaction or series of related transactions involving aggregate value in excess of $2.5 million, such transaction or series of related transactions has been approved by either (a) a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (b) the Audit Committee of the Board of Directors of the Company by a majority of members thereof who do not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions and promptly (4) with respect to any transaction or series of related transactions involving aggregate value in excess of $10.0 million, the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter into or suffer to exist the followingfrom a financial point of view; provided, however, that this provision shall not apply to:
(1i) transactions and agreements in existence on the Issue Date and any transaction or series of renewals, amendments, modifications and changes to such agreements which are not adverse in any material respect to the Company,
(ii) transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of among the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofSubsidiaries;
(4iii) loans Restricted Payments permitted by this Indenture;
(iv) compensation (including bonuses and advances equity compensation) paid to and other benefits (including retirement, health and other benefit plans, profit sharing plans, awards and transactions under stock incentive plans or management equity subscription agreements), severance agreements, and indemnification or insurance arrangements provided on behalf of officers, directors, managers, employees made or consultants of the Company or any Restricted Subsidiary, in each case in the ordinary course of business;
(v) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any stockholders’ agreement (including any registration rights agreement or purchase agreement but excluding any management agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter;
(vi) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners, lessors or lessees of property (real or personal) or purchasers or sellers of goods or services, in each case in the ordinary course of business and consistent otherwise in compliance with the past practices terms of this Indenture which are fair to the Company or such and its Restricted SubsidiarySubsidiaries, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million on terms substantially similar to any one employee and $5.0 million those contained in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to similar contracts entered into by the Company or any Restricted Subsidiary than with unaffiliated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, on terms that are in the reasonable determination of the senior management of the Company, at least as favorable as might reasonably have been obtained at such agreement as in effect on the Issue Date; andtime from an unaffiliated third party;
(6vii) sales the issuance of accounts receivableQualified Capital Stock (including all warrants, options or participations thereinother rights to acquire Qualified Capital Stock) of the Company;
(viii) loans and advances to, and reimbursements of, officers, directors, managers and employees for business related travel expenses, moving expenses and other similar expenses, in connection each case incurred in the ordinary course of business or consistent with past practices and in compliance with all applicable laws;
(ix) charitable contributions to the Spartan Stores Foundation or its successor, so long as such foundation or successor is qualified under Section 501(c)(3) of the Code and so long as each of the following conditions is satisfied: (i) as of the date of any Receivables Facilitysuch charitable contribution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing and (ii) the aggregate amount of all such charitable contributions made in any fiscal year shall not exceed $2.5 million.
Appears in 1 contract
Sources: Indenture (Spartan Stores 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 into, renew or suffer to exist extend any transaction with any of their respective Affiliates or series any beneficial holder of transactions (including 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc., including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property or property, the rendering of any service) with, or for the benefit ofmaking of any guarantee, any Affiliate of the Company (an "AFFILIATE TRANSACTION")loan, unless:
(1) advance or Investment, either directly or indirectly, unless the terms of such Affiliate Transaction are
(A) fair and reasonable to transaction are at least as favorable as the terms that could be obtained at such time by the Company or such Restricted Subsidiary, as the case may be, and
in a comparable transaction made on an arms'-length basis with a Person that is not such an Affiliate; provided, however, that (Bx) no less in any -------- ------- transaction involving aggregate consideration in excess of $10.0 million, the Company shall deliver an Officers' Certificate to the Trustee stating that a majority of the Disinterested Directors of either (i) the Board of Triton PCS Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time of such transaction the Company is not a Subsidiary of Triton PCS Holdings, Inc., have determined, in their good faith judgment, that the terms of such transaction are at least as favorable to as the terms that could be obtained by the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not made on an Affiliate of the Company;
arms'-length basis between unaffiliated parties and (2y) if such Affiliate Transaction involves the aggregate payments or value consideration is in excess of $1.0 25.0 million, the Company obtains and promptly delivers shall also deliver to the Trustee a resolution of its Board of Directors (including a majority Trustee, prior to the consummation of the disinterested members transaction, the favorable written opinion of a nationally recognized accounting, appraisal or investment banking firm as to the fairness of the Board transaction to Holders, from a financial point of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 millionview. Notwithstanding the foregoing, the restrictions set forth in this Section 4.03 shall not apply to (i) transactions between or among Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the and/or any Restricted Subsidiaries.
, (bii) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into Payment or suffer to exist the following:
Permitted Investment permitted by Section 4.06, (1iii) any transaction directors' fees, indemnification and similar arrangements, officers' indemnification, employee stock option or series of transactions between the Company employee benefit plans and one employee salaries and bonuses paid or more Restricted Subsidiaries or between two or more Restricted Subsidiaries created in the ordinary course of business, PROVIDED (iv) any other agreement in effect on the Issue Date, as the same shall be amended from time to time; provided that no more than 5% any material amendment -------- shall be required to comply with the provisions of the total voting power preceding paragraph of this Section 4.03, (v) transactions with AT&T Corporation or any of its Affiliates (collectively, "AT&T") relating to the Voting Stock marketing or provision of telecommunication services or related hardware, software or equipment on terms that are no less favorable (on when taken as a fully diluted basiswhole) to the Company or such Restricted Subsidiary, as applicable, than those available from unaffiliated third parties, (vi) transactions involving the leasing or sharing or other use by the Company or any Restricted Subsidiary of communications network facilities (including, without limitation, cable or fiber lines, equipment or transmission capacity) of any such Restricted Subsidiary is owned by an Affiliate of the Company or any beneficial holder of 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc. (other than such Affiliate or holder being a "Related Party") on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary);
, as applicable, than those available from such Related Party to unaffiliated third parties, (2vii) transactions involving the provision of telecommunication services by a Related Party in the ordinary course of its business to the Company or any Restricted Subsidiary, or by the Company or any Restricted Subsidiary to a Related Party, on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary, as applicable, than those available from such Related Party to unaffiliated third parties, (viii) any Restricted Payment permitted to be made sales agency agreements pursuant to Section 4.08 which an Affiliate has the right to market any or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer all of the products or director services of the Company or any of the Restricted Subsidiaries Subsidiaries, and (ix) customary commercial banking, investment banking, underwriting, placement agent or financial advisory fees paid in his or her capacity as an officer or director, so long as connection with services rendered to the Board of Directors in good faith shall have approved the terms thereof;
(4) loans Company and advances to employees made its subsidiaries in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycourse.
Appears in 1 contract
Sources: Indenture (Triton PCS Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries unless (an "AFFILIATE TRANSACTION"), unless:
(1a) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-an arm's length transaction with a Person that is not an Affiliate of the Company;
Company or its Restricted Subsidiaries and (2b) if such Affiliate Transaction involves either (i) with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 millionUS$2,500,000, but less than US$10,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its the Board of Directors of the Company set forth in an Officers' Certificate certifying that such transaction or series of related transactions comply with clause (a) above and that such transaction or transactions have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Company or (ii) with respect to a transaction or series of related transactions involving aggregate payments equal to or greater than US$10,000,000, the Company delivers to the Trustee (x) an Officers' Certificate certifying that such transaction or series of related transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) of the Company and (a)(1)(By) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor a nationally recognized investment banking firm to the effect that the such transaction is or series of related transactions are fair to the Company and or such Restricted Subsidiary from a financial point of view. The foregoing covenant shall not restrict any of the Restricted Subsidiaries.following:
(bA) Without regard to transactions exclusively among the foregoing limitationsCompany and/or its Restricted Subsidiaries provided such transactions are not otherwise prohibited under this Indenture;
(B) the Company from paying reasonable and customary regular compensation or fees to, or executing customary expense reimbursement, indemnification or similar arrangements with, directors or executive officers of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries made in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2C) any Restricted Payment transactions permitted to be made pursuant to by the provisions of Section 4.08 or any Permitted Investment10.11;
(3D) any transaction, including compensation and employee benefit arrangements, with an officer or director the issuance of the Company or any Mirror Note, the guarantees of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofMirror Note and transactions permitted by Section 10.21 and Section 10.22;
(4E) loans and advances to employees made transactions in the ordinary course of business and consistent connection with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;Reorganization; and
(5F) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to incurrence by the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityDeeply Subordinated Inter-company Debt.
Appears in 1 contract
Sources: Indenture (Baytex Energy LTD)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company or any beneficial owner of 10% or more of any class of the Capital Stock of the Company at any time outstanding (an "AFFILIATE TRANSACTIONInterested Persons"), unless:
unless (1a) the such transaction is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm's-arm's length transaction with a Person that is third parties who are not an Affiliate Interested Persons and (b) the Company delivers to the Trustee (i) with respect to any transaction or series of related transactions entered into after the Company;
(2) if such Affiliate Transaction involves Issue Date involving aggregate payments or value in excess of $1.0 million5,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its the Board of Directors of the Company or (in the case of a transaction involving OCC), a resolution of the Board of Directors of OCC set forth in an Officers' Certificate certifying that such transaction or transactions complies or comply with clause (a) above and that such transaction or transactions has or have been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Company or (in the case of a transaction involving OCC) by the Board of Directors (including a majority of the Disinterested Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) of OCC and (a)(1)(Bii) above; and
(3) if such Affiliate Transaction involves with respect to a transaction or series of related transactions involving aggregate payments equal to or value in excess of greater than $5.0 million10,000,000, the Company obtains a written opinion from an Independent Financial Advisor that as to the transaction is fair fairness to the Company and or such Restricted Subsidiary of such transaction or series of transactions from a financial point of view issued by an investment banking, accounting or valuation firm of national standing. The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted Subsidiaries.;
(bB) Without regard the Company from paying reasonable and customary regular compensation and fees to the foregoing limitations, directors of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director who are not employees of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6C) sales transactions permitted by the provisions of accounts receivable, or participations therein, in connection with any Receivables FacilitySection 1011.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct 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 any contract, agreement, understanding, loan, advance or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) guarantee with, or for the benefit of, any Affiliate (each of the Company (foregoing, an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
except for (1i) the Affiliate Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate value of not more than $1.0 million; provided, that such transactions are conducted in good faith and on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such the relevant Restricted Subsidiary, as the case may be, Subsidiary than those that could be would have been obtained in a comparable transaction at such time on an 50 52 arm's-length transaction with basis from a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, (2ii) if such Affiliate Transaction involves Transactions, which together with all Affiliate Transactions that are part of a common plan, have an aggregate payments or value in excess of not more than $1.0 5.0 million; provided, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including that a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate Directors of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors determine that such transactions are conducted in good faith shall have approved the and on terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would 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 the Company or such Restricted Subsidiary, and (iii) Affiliate Transactions for which the Company delivers to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary from a financial point of view, issued by an investment banking firm of national standing. Notwithstanding the foregoing, the following will not be deemed to be Affiliate Transactions: (i) employment agreements entered into by the Company or any Restricted Subsidiary than such agreement in the ordinary course of business with the approval of a majority of the disinterested members of the Company's Board of Directors, (ii) transactions between or among the Company and/or its Wholly Owned Subsidiaries, (iii) Restricted Payments permitted by Section 4.7 of this Indenture, and (iv) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary as determined in effect on good faith by a majority of the Issue Date; and
(6) sales disinterested directors of accounts receivablethe Company's Board of Directors or, or participations thereinif none, in connection with any Receivables Facilityunanimously by the Board of Directors.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Except for reinsurance agreements entered into with Capital liates Reinsurance Company shall or its Affiliates pursuant to the letter agreement as in effect on the date hereof, a copy of which is attached as Annex VIII hereto, the Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into any transaction or suffer to exist series or transactions, with or for the benefit of any Affiliate of the Company, unless (i) such transaction or series of transactions (including is in the purchase, sale, transfer, assignment, lease, conveyance or exchange best interest of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(Bii) such transaction or series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm'sarms-length transaction with an unrelated third party, (iii) with respect to a Person that is not an Affiliate transaction or series of the Company;
(2) if such Affiliate Transaction involves transactions involving aggregate payments or value in excess of $1.0 millionU.S.$1 million (other than transactions in the ordinary course of business (A) involving the insurance or reinsurance of risks, (B) involving the brokering of insurance or reinsurance, or (C) as otherwise contemplated in the Private Placement Memorandum), the Company obtains and promptly delivers to the Trustee a resolution of its Company's Board of Directors (including a majority of the disinterested members directors thereof) approves such transaction or series of the Board of Directors) approving such Affiliate Transaction transactions and certifying that, in its good faith judgment, judgment believes that such Affiliate Transaction transaction or series of transactions complies with clauses (a)(1)(Ai) and (a)(1)(Bii) above; and
of this paragraph, as evidenced by a Certified Resolution, and (3iv) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments or value in excess of $5.0 millionU.S.$3 million (other than transactions in the ordinary course of business (A) involving the insurance or reinsurance of risks, (B) involving the brokering of insurance or reinsurance, or (C) as otherwise contemplated in the Private Placement Memorandum), the Company Company, in addition to complying with clause (iii) of this paragraph, obtains a written an opinion from an Independent Financial Advisor internationally recognized expert with experience in appraising the terms and conditions of the relevant type of transaction stating that the transaction is fair from a financial point of view to the Company and the or such Restricted Subsidiaries.
(b) Without regard to the foregoing limitationsSubsidiary. In addition, the Company or any will not and will not permit the Restricted Subsidiary may Subsidiaries to enter into or suffer to exist the following:
(1) any transaction or series of transactions between (other than the agreements with Capital Reinsurance Company and or its Affiliates referred to above) with any Person who holds the right to designate only one voting member of the Company's Board of Directors or more Restricted Subsidiaries any Affiliate of such a Person, unless such transaction or between two or more Restricted Subsidiaries series of transactions is (1) in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate best interests of the Company (other than a Restricted Subsidiary);
as determined by the disinterested members of the Board and (2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with entered into on an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilityarms-length basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary), as the case may be, and
unless (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (ii) with respect to any one transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million1,000,000 but less than $5,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee a resolution certifying that (A) such transaction or series of its related transactions complies with clause (i) above and (B) such transaction or series of related transactions has been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Board of Directors) approving such Affiliate Transaction and certifying thatCompany, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(Biii) above; and
(3) if such Affiliate Transaction involves with respect to any one transaction or series of related transactions involving aggregate payments or value in excess of $5.0 million5,000,000, the Company obtains delivers an Officers' Certificate to the Trustee certifying to the two matters referred to in clause (ii) above and that the Company has obtained a written opinion from an Independent Financial Advisor that independent nationally recognized investment banking firm or appraisal firm specializing or having a speciality in the type and subject matter of the transaction or series of related transactions at issue, which opinion shall be to the effect set forth in clause (i) above or shall state that such transaction or series of related transactions is fair from a financial point of view to the Company and the or such Restricted Subsidiaries.
(b) Without regard to Subsidiary; provided, however, that the foregoing limitationsrestriction shall not apply to (w) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 1,000,000 outstanding at any one time outstanding;
time, (5x) agreements in effect on the Issue Date indemnities of officers, directors and any modifications, extensions or renewals thereto that are no less favorable to employees of the Company or any Restricted Subsidiary than such agreement as in effect on permitted by bylaw or statutory provisions, (y) the Issue Date; and
payment of reasonable and customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate and (6z) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitythe Company's employee compensation and other benefit arrangements.
Appears in 1 contract
Sources: Indenture (Veritas DGC Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including. without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary, as the case may be, and
) unless: (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-transaction in arm's length dealings with an unrelated third party, (ii) with respect to a transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves aggregate related transactions involving payments or value in excess of $1.0 million1,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee certifying that such transaction complies with clause (i) above, (iii) with respect to a resolution transaction or series of its Board transactions involving payments in excess of Directors $5,000,000 but less than $15,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (including a) such transaction or series of related transactions complies with clause (i) above and (b) such transaction or series of related transactions will have been approved by a majority of the disinterested members Disinterested Directors of the Company, and (iv) with respect to a transaction or series of transactions involving payments of $15,000,000 or more in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (a) such transaction or series of related transactions complies with clause (i) above, (b) such transaction or series of related transactions will have been approved by a majority of the Disinterested Directors of the Company and (c) the Company will have received the written opinion of a firm of investment bankers nationally recognized in the United States that such transaction or series of transactions is fair, from a financial point of view, to the Company or such Restricted Subsidiary; provided, however, that the foregoing restriction will not apply to: (1) the provision of services and payments under the Master Services Agreement so long as such agreement (including any modifications thereof or amendments thereto entered into on or after the date of this Indenture) has been approved by a majority of the independent directors of the Board of DirectorsDirectors of the Company, (2) approving such Affiliate Transaction loans or advances to officers, directors and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess employees of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 3,000,000 outstanding at any one time outstanding;
time, (53) agreements in effect on the Issue Date payment of reasonable and any modifications, extensions or renewals thereto that are no less favorable customary regular fees to directors of the Company or any of its Restricted Subsidiary than such agreement as in effect on Subsidiaries who are not employees of the Issue Date; and
Company or any Affiliate, (64) sales of accounts receivablethe Company's employee compensation and other benefit arrangements, or participations therein, in connection (5) indemnities of officers and directors of the Company or any Subsidiary consistent with any Receivables Facilitysuch Person's bylaws and applicable statutory provisions.
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Wholly Owned Restricted Subsidiary, as the case may be, and
) unless such transaction or series of related transactions is entered into in good faith and in writing and (Ba) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party, (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million500,000, the Company obtains delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above or such transaction or series of related transactions is approved by a majority of the Disinterested Directors of the Board of Directors, or in the event there is only one Disinterested Director, by such Disinterested Director, and promptly (c) with respect to any transaction or series of related transactions involving aggregate value in excess of $1 million, either (A) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or (B) the Company delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction transactions or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter from a financial point of view; provided, however, that this provision shall not apply to (i) compensation and employee benefit arrangements with any officer or director of the Company, including under any stock option or stock incentive plans, entered into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% ; (ii) any transaction permitted as a Restricted Payment pursuant to Section 1009; (iii) the payment of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate customary fees to directors of the Company and its Restricted Subsidiaries; (other than a Restricted Subsidiary);
(2iv) any Restricted Payment permitted to be made pursuant to Section 4.08 or transaction with any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director member of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved of the terms thereof;
Company involving indemnification arrangements; and (4v) loans and or advances to employees made officers of the Company in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not to exceed $1.0 million to any one employee and $5.0 1 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycalendar year.
Appears in 1 contract
Sources: Exhibit (Sonic Automotive Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance or exchange of any Property property or the rendering of any serviceservices) with, or for the benefit of, any Affiliate of the Company other than a Restricted Subsidiary or B8/32 Partners (each, other than a Restricted Subsidiary and B8/32 Partners, being an "AFFILIATE TRANSACTIONInterested Person"), unless:
unless (1a) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that unrelated third parties who are not Interested Persons, or, in the event no comparable transaction with an unrelated third party who is not an Affiliate Interested Person is available, on terms that are fair from a financial point of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers view to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million (b) with respect to any one employee transaction or series of related transactions involving aggregate payments in excess of $15,000,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (a) above and such transaction or series of transactions has been approved by the Board of Directors and (c) with respect to any one transaction or series of related transactions involving aggregate payments in excess of $5.0 million 30,000,000, the Officers' Certificate referred to in clause (b) above also includes a certification that such transaction or series of transactions has been approved by a majority of the Disinterested Directors (either of the full Board of Directors or, in the aggregate case of action by a committee thereof, of such committee) or, in the event there are no such Disinterested Directors, that the Company has obtained a written opinion from an independent nationally recognized investment banking firm or appraisal firm, in either case specializing or having a specialty in the type and subject matter of the transaction or series of related transactions at issue, which opinion shall be to the effect set forth in clause (a) above; provided, however, that this covenant will not restrict the Company from (i) paying reasonable and customary regular compensation and fees to directors of the Company who are not employees of the Company or any one time outstanding;
Restricted Subsidiary, (5ii) agreements in effect paying dividends on, or making distributions with respect to, shares of Capital Stock of the Company on a pro rata basis to the Issue Date and any modificationsextent permitted by Section 9.10 hereof, extensions or renewals thereto (iii) Restricted Payments that are no less favorable permitted by Section 9.10 hereof, (iv) making loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary than such made in the ordinary course of business and consistent with customary practices in the Oil and Gas Business in an aggregate amount not to exceed $1,000,000 outstanding at any one time, (v) making any indemnification or similar payment to any director or officer (A) in accordance with the corporate charter or bylaws of the Company or any Restricted Subsidiary, (B) under any agreement as or (C) under applicable law and (vi) fulfilling obligations of the Company or any Restricted Subsidiary under employee compensation and other benefit arrangements entered into or provided for in effect on the Issue Date; and
(6) sales ordinary course of accounts receivable, or participations therein, in connection with any Receivables Facilitybusiness.
Appears in 1 contract
Sources: Indenture (Pogo Producing Co)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist conduct any transaction or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or the rendering of any service) with, involving payments or value to such Affiliate with or for the benefit of, of any Affiliate of the Company or any of the Restricted Subsidiaries (an "AFFILIATE TRANSACTIONAffiliate Transaction"), unless:
(1) unless the terms of such Affiliate Transaction are
are either (Ax) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
Subsidiary from a financial point of view or (By) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time of such transaction in a comparable arm's-length transaction dealings with a Person that who is not such an Affiliate of the Company;
(2) if such Affiliate Transaction Affiliate. For any transaction that involves aggregate payments or value in excess of $1.0 million1,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Directors shall determine that the transaction satisfies the criteria of the preceding sentence. For any Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction that involves aggregate payments or value in excess of $5.0 million25,000,000, the Company obtains shall obtain an opinion from a written nationally recognized independent investment banking firm or other firm 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 (an "Independent Evaluation Firm") stating in substance that the terms of such Affiliate Transaction are in compliance with either clause (x) or (y) above. For any Affiliate Transaction (other than as set forth in clauses (i) through (x) (other than clause (viii)) below) that involves in excess of $1,000,000, for so long as Textron and its Subsidiaries are the Holders of at least a majority of the aggregate Liquidation Preference of any of the Series A Redeemable Preferred Stock, the Series B Redeemable Preferred Stock or the Series C Redeemable Preferred Stock, the Company shall obtain the prior consent of Textron unless the Company shall have obtained an opinion from an Independent Financial Advisor Evaluation Firm stating in substance that the transaction is fair to terms of such Affiliate Transaction are in compliance with either clause (x) or (y) above. The requirements of the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingimmediately preceding paragraph shall not apply to:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2i) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment7(b);
(3ii) any transactionissuance of securities, including compensation and employee benefit or other payments, awards or grants in cash, securities or otherwise pursuant to employment arrangements, with an officer or director any stock options and stock ownership plans for the benefit of employees, officers and directors, consultants and advisors approved by the Board of Directors of the Company, or any loans or advances to employees in the ordinary course of business of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereofits Subsidiaries;
(4iii) loans any transaction between or among the Company and advances to any Restricted Subsidiary or between or among Restricted Subsidiaries so long as, in the case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary, no Affiliate of the Company (other than a Restricted Subsidiary) owns any Capital Stock (other than directors' qualifying shares) in such Restricted Subsidiary;
(iv) indemnification agreements with, and the payment of fees and indemnities to, directors, officers and employees made of the Company and its Subsidiaries or any employment, noncompetition or confidentiality agreements entered into by the Company or any of its Subsidiaries with its directors, officers or employees in the ordinary course of business and consistent with business;
(v) the past practices issuance of Capital Stock of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million receipt of capital contributions by the Company otherwise in the aggregate at any one time outstandingcompliance with this Certificate of Designation;
(5vi) transactions pursuant to agreements as in effect existence on the Issue Issuance Date of the Series A1 Redeemable Preferred Stock, Series B1 Redeemable Preferred Stock and Series C1 Redeemable Preferred Stock;
(vii) payments contemplated by the Advisory Agreement and payments in connection with the Acquisition, including the reimbursement of out-of-pocket expenses incurred in connection with the Acquisition;
(viii) for so long as Textron and its Subsidiaries are the Holders of at least a majority of the aggregate Liquidation Preference of any of the Series A Redeemable Preferred Stock, the Series B Redeemable Preferred Stock or the Series C Redeemable Preferred Stock, any Affiliate Transaction with respect to which the Company shall have obtained the prior consent of Textron;
(ix) any management, service, purchase, supply or similar agreement relating to operations of a business entered into in the ordinary course of the Company's business between the Company or any Restricted Subsidiary and any modificationsAffiliate (including an Unrestricted Subsidiary), extensions or renewals thereto that are so long as any such agreement 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 or a Related Person; and
(x) any reasonable corporate service agreements, tax sharing agreements and other agreements customary in connection with spin-off transactions entered into between the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with and any Receivables Facilityspun-off entity.
Appears in 1 contract
Sources: Purchase Agreement (Textron Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including. without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary, as the case may be, and
) unless (Bi) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-transaction in arm's length dealings with an unrelated third party, (ii) with respect to a transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves aggregate related transactions involving payments or value in excess of $1.0 million1,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee certifying that such transaction complies with clause (i) above, (iii) with respect to a resolution transaction or series of its Board transactions involving payments in excess of Directors $5,000,000 but not less than $15,000,000 in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (including a) such transaction or series of related transactions complies with clause (i) above and (b) such transaction or series of related transactions shall have been approved by a majority of the disinterested members Disinterested Directors of the Company and (iv) with respect to a transaction or series of transactions involving payments of $15,000,000 or more in the aggregate, the Company delivers an Officers' Certificate to the Trustee certifying that (a) such transaction or series of related transactions complies with clause (i) above, (b) such transaction or series of related transactions shall have been approved by a majority of the Disinterested Directors of the Company and (c) the Company shall have received the written opinion of a firm of investment bankers nationally recognized in the United States that such transaction or series of transactions is fair, from a financial point of view, to the Company or such Restricted Subsidiary; PROVIDED, HOWEVER, that the foregoing restriction shall not apply to (1) the provision of services and payments under the Administrative Services Agreement so long as such agreement (including any modifications thereof or amendments thereto entered into on or after the date of this Indenture) has been approved by a majority of the independent directors of the Board of DirectorsDirectors of the Company, (2) approving such Affiliate Transaction loans or advances to officers, directors and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess employees of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such and its Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do Subsidiaries in an aggregate amount not to exceed $1.0 million to any one employee and $5.0 million in the aggregate 3,000,000 outstanding at any one time outstanding;
time, (53) agreements in effect on the Issue Date payment of reasonable and any modifications, extensions or renewals thereto that are no less favorable customary regular fees to directors of the Company or any of its 80 Restricted Subsidiaries who are not employees of the Company or any Affiliate, (4) the Company's employee compensation and other benefit arrangements or (5) indemnities of officers and directors of the Company or any Subsidiary than consistent with such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityPerson's bylaws and applicable statutory provisions.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall notNeither the Company, and shall not permit the Subsidiary Guarantors, nor any of their respective Restricted Subsidiary Subsidiaries will be permitted to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, or for the benefit of, with any Affiliate of the Company or any of its Restricted Subsidiaries (an "AFFILIATE TRANSACTIONAffiliate Transactions"), unless:
(1) the terms of such other than Exempted Affiliate Transaction are
(A) Transactions, except upon fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) terms no less favorable to the Company Company, the Subsidiary Guarantor or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person that is not an Affiliate Affiliate. The foregoing limitation does not limit, and shall not apply to (i) transactions approved by a majority of the Board of the Company;
; (2ii) if such the payment of reasonable and customary fees and expenses to members of the Board of the Company who are not employees of the Company; (iii) any Restricted Payments not prohibited by Section 4.9 or Section 4.15 (as applicable) or any payments specifically exempted from the definition of Restricted Payments; and (iv) Permitted REIT Payments. Notwithstanding the foregoing, any Affiliate Transaction involves or series of related Affiliate Transactions, other than Exempted Affiliate Transactions and any transaction or series of related transactions specified in any of clauses (ii) through (iv) of this paragraph, (a) with an aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers 10 million must first be approved pursuant to the Trustee a resolution of its Board of Directors (including Resolution by a majority of the disinterested members Board of the Board Company who are disinterested in the subject matter of Directors) approving such Affiliate Transaction and certifying thatthe transaction, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(Bb) above; and
(3) if such Affiliate Transaction involves with an aggregate payments or value in excess of $5.0 25 million, will require the Company obtains to obtain a favorable written opinion from an Independent Financial Advisor independent financial advisor of national reputation as to the fairness from a financial point of view of such transaction to the Company, such Subsidiary Guarantor or such Restricted Subsidiary, except that in the case of a real estate transaction or related real estate transactions with an aggregate value in excess of $25 million but not in excess of $50 million, an opinion may instead be obtained from an independent, qualified real estate appraiser that the consideration received in connection with such transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitationsCompany, the Company or any Restricted such Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company Guarantor or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Sources: Indenture (HMH Properties Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company their respective Affiliates (each an "AFFILIATE TRANSACTIONAffiliate Transaction")) other than (i) Affiliate Transactions permitted by paragraph (b) of this Section 10.16, unless:
(1ii) the Affiliate Transactions on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable arm's-arm's length transaction with a Person that is not an Affiliate unrelated Person, (iii) with respect to any one transaction or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million1,000,000 but less than $5,000,000 in the aggregate, the Company obtains and promptly delivers an Officers' Certificate to the Trustee a resolution certifying that (A) such transaction or series of its related transactions complies with clause (ii) above and (B) such transaction or series of related transactions has been approved by the Board of Directors (including a majority of the disinterested members Disinterested Directors) of the Board of Directors) approving such Affiliate Transaction and certifying thatCompany, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(Biv) above; and
(3) if such Affiliate Transaction involves with respect to any one transaction or series of related transactions involving aggregate payments or value in excess of $5.0 million5,000,000, the Company obtains delivers an Officers' Certificate to the Trustee certifying to the two matters referred to in clause (iii) above and that the Company has obtained a written opinion opinion, a copy of which shall be attached to such Officers' Certificate, from an Independent Financial Advisor that independent nationally recognized investment banking firm or appraisal firm specializing or having a speciality in the transaction is fair to type and subject matter of the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between at issue, which opinion shall be to the Company and one effect set forth in clause (ii) above or more Restricted Subsidiaries shall state that such transaction or between two or more Restricted Subsidiaries in the ordinary course series of business, PROVIDED that no more than 5% related transactions is fair from a financial point of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted view to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;.
(5b) agreements The restrictions set forth in effect on paragraph (a) shall not apply to (i) transactions exclusively between or among the Issue Date Company and any modificationsof its Restricted Subsidiaries or exclusively between or among Restricted Subsidiaries so long as such transactions are not otherwise prohibited hereunder, extensions or renewals thereto that are no less favorable to (ii) reasonable indemnities of officers, directors and employees of the Company or any Restricted Subsidiary than such agreement as in effect on permitted by bylaw or statutory provisions, (iii) the Issue Date; and
payment of reasonable and customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate and (6iv) sales reasonable employee compensation and other benefit arrangements approved by the Board of accounts receivable, or participations therein, in connection with any Receivables FacilityDirectors of the Company.
Appears in 1 contract
Sources: Indenture (Willcox & Gibbs Inc /De)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unlessor any Restricted Subsidiary’s Affiliate unless such transaction or series of transactions is entered into in good faith and:
(1) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'sarm’s-length transaction transactions with a Person third parties that is are not an Affiliate of the CompanyAffiliates;
(2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value in excess of greater than $1.0 10.0 million, the Company obtains and promptly delivers shall deliver an Officer’s Certificate to the Trustee certifying that such transaction or series of transactions complies with Section 4.12(a)(1) hereof; and
(3) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than $25.0 million, the Company shall deliver a resolution of its Board of Directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with Section 4.12(a)(1) hereof and that the fairness of such transaction has been approved by a majority of the Company’s Board of Directors, including a majority of the Disinterested Directors, if any (or in the event there is only one Disinterested Director, by such Disinterested Director). For purposes of this Section 4.12(a), the sale of multiple indefeasible rights of use to the same customer in successive years shall not be considered a series of related transactions.
(b) The restrictions set forth in Section 4.12(a) shall not apply to:
(1) customary directors’ fees, indemnification, expense reimbursement and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees, so long as the Board of Directors of the Company or Restricted Subsidiaries, as appropriate, has approved the terms thereof in good faith and deemed the services theretofore or thereafter to be performed for such compensation or payments to be fair consideration therefor;
(2) any dividend or distribution (whether made in cash, securities or other property) with respect to any of the Company’s or any Restricted Subsidiary’s Capital Stock (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) to the extent not prohibited by Section 4.10 hereof;
(3) agreements and arrangements existing on the Issue Date (including, without limitation, the transactions contemplated under such agreements and arrangements) and any amendment, modification or supplement thereto, provided that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the Holders of the Notes and to the Company and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date and provided, further, that such amendment or modification is (x) on a basis substantially similar to or more preferable to the Company or such Restricted Subsidiary than that which would be conducted in an arm’s-length transaction with third parties who are not Affiliates and (y) in the case of any transaction having a Fair Market Value of greater than $25.0 million, approved by the Company’s Board of Directors (including a majority of the disinterested members Disinterested Directors);
(4) any payments or other transactions pursuant to a tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation;
(5) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Company’s Board of Directors;
(6) approving the granting and performance of registration rights for the Company’s securities;
(7) (a) transactions with Affiliates in their capacity as holders of Debt or Capital Stock of the Company or any Restricted Subsidiary, so long as such Affiliate Transaction and certifying thatAffiliates are treated no more favorably than holders of such Debt or Capital Stock generally, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(Bb) abovetransactions with Affiliates in their capacity as borrowers of Debt from the Company or any Restricted Subsidiary, so long as such Affiliates are treated no more favorably than holders of such Debt generally; and
(3) if such Affiliate Transaction involves aggregate payments 8) transactions between or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to among the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more among Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilitySubsidiaries.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Limitation on Transactions with Affiliates. (a) The Subsequent to the Issue Date, the Company shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer permit to exist any transaction or series of related transactions (including including, but not limited to, the purchase, sale, transfer, assignment, lease, conveyance sale or exchange of Property, the making of any Property Investment, the giving of any guarantee or the rendering of any service) with, or for the benefit of, service with any Affiliate of the Company Company, other than transactions between or among the Company, and any Subsidiaries) unless (an "AFFILIATE TRANSACTION"), unless:
(1i) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm's-arm's length transaction with a Person that is not such an Affiliate and (ii) (a) with respect to a transaction or series of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value related transactions that has a Fair Market Value in excess of $1.0 500,000 but less than $5.0 million, the Company obtains and promptly delivers an Officer's Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above; (b) with respect to a resolution transaction or series of its related transactions that has a Fair Market Value equal to or in excess of $5.0 million but less than $10.0 million, the transaction or series of related transactions is approved by a majority of the Board of Directors of the Company (including a majority of the disinterested members directors), which approval is set forth in a Board Resolution certifying that such transaction or series of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction transactions complies with clauses clause (a)(1)(A) and (a)(1)(Bi) above; and
or (3c) if such Affiliate Transaction involves aggregate payments with respect to a transaction or value series of related transactions that has a Fair Market Value equal to or in excess of $5.0 10.0 million, the Company obtains a written shall have received an opinion from an Independent Financial Advisor that as to the transaction is fair fairness to the Company and the Restricted Subsidiariesor such Subsidiary from a financial point of view issued by an investment banking firm of national standing.
(b) Without regard The restrictions set forth in clause (a) shall not be applicable to the foregoing limitations(i) reasonable and customary compensation, indemnification and other benefits paid or made available to an officer, director or employee of the Company or any Restricted a Subsidiary may enter into for services rendered in such person's capacity as an officer, director or suffer to exist the following:
employee (1including reimbursement or advancement of reasonable out-of-pocket expenses and provisions of directors' and officers' liability insurance) any transaction or series of agreements providing therefor, (ii) transactions between the Company or its Subsidiaries on the one hand, and one the Initial Purchaser or more Restricted Subsidiaries its Affiliates on the other hand, involving the provision of financial, consulting or between two underwriting services by the Initial Purchaser or more Restricted Subsidiaries in its Affiliates; provided that the ordinary course of business, PROVIDED that no more than 5% fees payable to the Initial Purchaser or its Affiliates do not exceed the usual and customary fees of the total voting power of the Voting Stock Initial Purchaser and its Affiliates for similar services, (on a fully diluted basisiii) of any such Restricted Subsidiary is owned payments made, or transactions entered into, by an Affiliate of the Company or its Subsidiaries pursuant to or in accordance with the Shareholders Agreement, the Acquisition Agreements or the Bank Facility or (other than a Restricted Subsidiary);
(2iv) the making of any Restricted Payment otherwise permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of by the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables FacilityIndenture.
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 any business or enter into into, renew or suffer to exist extend any transaction with any of their respective Affiliates or series any beneficial holder of transactions (including 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc., including, without limitation, the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property or property, the rendering of any service) with, or for the benefit ofmaking of any guarantee, any Affiliate of the Company (an "AFFILIATE TRANSACTION")loan, unless:
(1) advance or Investment, either directly or indirectly, unless the terms of such Affiliate Transaction are
(A) fair and reasonable to transaction are at least as favorable as the terms that could be obtained at such time by the Company or such Restricted Subsidiary, as the case may be, and
in a comparable transaction made on an arms'-length basis with a Person that is not such an Affiliate; provided, however, that (Bx) no less in any -------- ------- transaction involving aggregate consideration in excess of $10.0 million, the Company shall deliver an Officers' Certificate to the Trustee stating that a majority of the Disinterested Directors of either (i) the Board of Triton PCS Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time of such transaction the Company is not a Subsidiary of Triton PCS Holdings, Inc., have determined, in their good faith judgment, that the terms of such transaction are at least as favorable to as the terms that could be obtained by the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not made on an Affiliate of the Company;
arms'-length basis between unaffiliated parties and (2y) if such Affiliate Transaction involves the aggregate payments or value consideration is in excess of $1.0 25.0 million, the Company obtains and promptly delivers shall also deliver to the Trustee a resolution of its Board of Directors (including a majority Trustee, prior to the consummation of the disinterested members transaction, the favorable written opinion of a nationally recognized accounting, appraisal or investment banking firm as to the fairness of the Board transaction to Holders, from a financial point of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 millionview. Notwithstanding the foregoing, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair restrictions set forth in this Section 4.03 shall not apply to (i) transactions between or among the Company and the and/or any Restricted Subsidiaries.
, (bii) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into Payment or suffer to exist the following:
Permitted Investment permitted by Section 4.06, (1iii) any transaction directors' fees, indemnification and similar arrangements, officers' indemnification, employee stock option or series of transactions between the Company employee benefit plans and one employee salaries and bonuses paid or more Restricted Subsidiaries or between two or more Restricted Subsidiaries created in the ordinary course of business, PROVIDED (iv) any other agreement in effect on the Issue Date, as the same shall be amended from time to time; provided, however, that no more than 5% -------- ------- any material amendment shall be required to comply with the provisions of the total voting power preceding paragraph of this Section 4.03, (v) transactions with AT&T Corporation, AT&T Wireless Services, Inc. and AT&T Wireless PCS LLC or any of their affiliates (collectively, "AT&T") relating to the Voting Stock marketing or provision ---- of telecommunication services or related hardware, software or equipment on terms that are no less favorable (on when taken as a fully diluted basiswhole) to the Company or such Restricted Subsidiary, as applicable, than those available from unaffiliated third parties, (vi) transactions involving the leasing or sharing or other use by the Company or any Restricted Subsidiary of communications network facilities (including, without limitation, cable or fiber lines, equipment or transmission capacity) of any such Restricted Subsidiary is owned by an Affiliate of the Company or any beneficial holder of 10% or more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc. (other than such Affiliate or holder being a "Related Party") on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary);
, as applicable, than those available from such Related Party to unaffiliated third parties, (2vii) transactions involving the provision of telecommunication services by a Related Party in the ordinary course of its business to the Company or any Restricted Subsidiary, or by the Company or any Restricted Subsidiary to a Related Party, on terms that are no less favorable (when taken as a whole) to the Company or such Restricted Subsidiary, as applicable, than those available from such Related Party to unaffiliated third parties, (viii) any Restricted Payment permitted to be made sales agency agreements pursuant to Section 4.08 which an Affiliate has the right to market any or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer all of the products or director services of the Company or any of the Restricted Subsidiaries Subsidiaries, and (ix) customary commercial banking, investment banking, underwriting, placement agent or financial advisory fees paid in his or her capacity as an officer or director, so long as connection with services rendered to the Board of Directors in good faith shall have approved the terms thereof;
(4) loans Company and advances to employees made its subsidiaries in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facilitycourse.
Appears in 1 contract
Sources: Indenture (Triton PCS Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including the purchase, sale, transfer, assignmentdisposition, leasepurchase, conveyance exchange or exchange lease of Property, the making of any Property Investment, the giving of any Guarantee or the rendering of any service) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to other than the Company or such a Restricted Subsidiary), as the case may be, and
unless (Bi) such transaction or series of transactions is on terms no less favorable to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company;
Company or such Restricted Subsidiary, and (2ii) if such Affiliate Transaction involves with respect to a transaction or series of transactions involving aggregate payments by or value to the Company or such Restricted Subsidiary having a Fair Market Value equal to or in excess of (a) $1.0 million1,000,000 but less than $7,500,000, an Officer of the Company certifies that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by an Officer's Certificate delivered to the Trustee, (b) $7,500,000 but less than $30,000,000, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors of the Company (including a majority of the disinterested members of the such Board of Directors) approving approves such Affiliate Transaction transaction or series of transactions and certifying thatcertifies that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by a certified resolution delivered to the Trustee or (c) $30,000,000, (1) the Company receives from an independent, nationally recognized investment banking firm or appraisal firm, in its good faith judgmenteither case specializing or having a specialty in the type and subject matter of the transaction (or series of transactions) at issue, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion that such transaction (or series of transactions) is fair, from an Independent Financial Advisor that the transaction is fair a financial point of view, to the Company or such Restricted Subsidiary and (2) the Board of Directors of the Company (including a majority of the disinterested members of such Board of Directors) approves such transaction or series of transactions and certifies that such transaction or series of transactions complies with clause (i) of this paragraph, as evidenced by a certified resolution delivered to the Trustee. The limitations of the preceding paragraph do not apply to (i) the payment of reasonable and customary regular fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any of its Restricted Subsidiaries.
, (bii) Without regard indemnities of officers and directors of the Company or any Subsidiary consistent with such Person's charter, bylaws and applicable statutory provisions, (iii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (iv) loans made (a) to the foregoing limitationsofficers, directors or employees of the Company or any Restricted Subsidiary may enter into approved by the Board of Directors (or suffer by a duly authorized officer) of the Company, the proceeds of which are used solely to exist purchase common stock of the following:
Company in connection with a restricted stock or employee stock purchase plan, or to exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the exercise price of such stock options, or (1b) to refinance loans, together with accrued interest thereon, made pursuant to this clause (iv), (v) advances and loans to officers, directors and employees of the Company or any Subsidiary; PROVIDED such loans and advances (excluding loans or advances made pursuant to the preceding clause (iv)) do not exceed $5,000,000 at any one time outstanding, (vi) any Restricted Payment permitted to be paid pursuant to Section 4.04, (vii) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, ; PROVIDED that no more than 510% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
) or (2viii) any Restricted Payment permitted to be made transaction or series of transactions pursuant to Section 4.08 any agreement or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director obligation of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Sources: Indenture (Forest Oil 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 or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, sale, transfer, assignment, lease, conveyance exchange or exchange lease of any Property assets or property or the rendering of any service) ), with, or for the benefit of, any Affiliate of the Company Parent Guarantor having a value greater than US$2,000,000 (an "AFFILIATE TRANSACTION"or the Dollar Equivalent thereof), unlessunless such transaction or series of transactions is entered into in good faith and:
(1) the such transaction or series of transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiarythat, taken as the case may bea whole, and
(B) no are not materially less favorable to the Company Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could be have been obtained in a comparable arm'sarm’s-length transaction with third parties that are not Affiliates of the Parent Guarantor;
(2) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services having a value greater than US$5,000,000 (or the Dollar Equivalent thereof), the Parent Guarantor will deliver a resolution of its Board of Directors (attached to an Officers’ Certificate to the Trustee) resolving that such transaction complies with Section 4.11(a)(1) hereof and that the fairness of such transaction has been approved by a majority of the Disinterested Members, if any, of the Board of Directors; and
(3) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services having a value greater than US$10,000,000 (or the Dollar Equivalent thereof), the Parent Guarantor will deliver to the Trustee a written opinion of an Independent Financial Advisor stating that the transaction or series of transactions is fair to the Parent Guarantor or such Restricted Subsidiary from a financial point of view or that the terms are not materially less favorable to the Parent Guarantor or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent Guarantor or such Restricted Subsidiary with a Person that is not an Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company obtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted SubsidiariesParent Guarantor.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the followingThe restrictions set forth in Section 4.11(a) hereof will not apply to:
(1) any transaction customary directors’ fees, indemnities and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee compensation, employee and director bonuses, employment agreements and arrangements or series of transactions between the Company and one employee benefit arrangements, including stock options or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary)legal fees;
(2) any Restricted Payment permitted to be made pursuant to not prohibited by Section 4.08 or any Permitted Investment4.07 hereof;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances (or guarantees to third party loans, but not any forgiveness of such loans or advances) to directors, officers or employees of the Parent Guarantor or any Restricted Subsidiary made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do in an amount outstanding not to exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingUS$2,000,000 (or the Dollar Equivalent thereof);
(54) agreements in effect and arrangements existing on the Issue Date and any modificationsamendment, extensions extension, renewal, refinancing, modification or renewals thereto supplement thereto; provided that are no less favorable any such amendment, extension, renewal, refinancing, modification or supplement to the Company terms thereof is not more disadvantageous, taken as a whole, to the Holders and to the Parent Guarantor and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date;
(5) the issuance of securities or other payments, awards or grants in cash, securities or similar transfers pursuant to, or for the purpose of the funding of, employment arrangements, stock options, stock ownership plans and other similar arrangements, as long as the terms thereof are or have been previously approved by the Parent Guarantor’s Board of Directors;
(6) transactions between or among the Parent Guarantor and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(7) any issuance of Capital Stock (other than Redeemable Capital Stock) of the Parent Guarantor, options, warrants or other rights to acquire such Capital Stock;
(8) the existence of, or the performance by the Parent Guarantor or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, any stockholders’ or joint venture agreement (including any registration rights agreement or purchase agreement relating thereto) to which it is a party as of the Issue Date; provided, however, that the existence of, or the performance by the Parent Guarantor or any of its Restricted Subsidiaries of, obligations under any future amendment to any such existing 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 more disadvantageous to the Holders when taken as a whole in any material respect than such the original agreement as in effect on the Issue Date;
(9) any transaction with a Person that is an Affiliate of the Parent Guarantor, solely because the Parent Guarantor or a Restricted Subsidiary owns Capital Stock in or otherwise controls such Person or has the right to designate one or more members of the Board of Directors or similar governing body of such Person;
(10) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Parent Guarantor or the Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Parent Guarantor or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person; and
(611) sales any Permitted Investment (other than a Permitted Investment as defined in clause (c)(iii) or (r) of accounts receivable, or participations therein, in connection with any Receivables Facilitythe definition of “Permitted Investments” herein).
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 any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, with or for the benefit of, of any Affiliate of the Company (an "AFFILIATE TRANSACTION"), unless:other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and
(1) the such transaction or series of related transactions is on terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length transaction dealings with a Person that is not an Affiliate of the Company;unrelated third party,
(2) if such Affiliate Transaction involves with respect to any transaction or series of related transactions involving aggregate payments or value in excess of $1.0 10.0 million,
(a) the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above, and
(b) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or
(3) with respect to any transaction or series of related transactions involving an aggregate value in excess of $50.0 million, the Company obtains and promptly delivers to the Trustee a resolution written opinion of its Board an investment banking firm of Directors (including a majority national standing in the United States or Canada or other recognized independent expert with experience appraising the terms and conditions of the disinterested members type of the Board transaction or series of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written related transactions for which an opinion from an Independent Financial Advisor is required stating that the transaction or series of related transactions is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any such Restricted Subsidiary may enter from a financial point of view; PROVIDED, HOWEVER, that this provision shall not apply to: (i) employee benefit arrangements with any officer or director of the Company, including under any stock option or stock incentive plans, and customary indemnification arrangements with officers or directors of the Company, in each case entered into or suffer to exist the following:
(1) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% (ii) any Restricted Payments made in compliance with Section 1009 above, (iii) transactions effected as part of a Permitted Securitization Transaction, (iv) any fees paid or expenses reimbursed to directors in the total voting power ordinary course in their capacity as such, (v) any sale or issuance of the Voting Qualified Capital Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate to Affiliates of the Company and (other than a Restricted Subsidiary);
(2vi) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made transactions entered into in the ordinary course of business and consistent with the past practices Affiliates of the Company who are Canadian drugstore franchisees, whether currently owned or such Restricted Subsidiaryafter-acquired, in their capacities as such, for purposes of (a) purchase and sale of inventory for the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivablerelated franchises, or participations therein, in connection with any Receivables Facility.(b) entering into the inventory buyback or guarantee arrangements described under clauses (16) and (17) of the definition of "Permitted Indebtedness". 109
Appears in 1 contract
Sources: Exhibit (Brooks Pharmacy, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall Publishing will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of related transactions (including including, without limitation, the sale, purchase, saleexchange or lease of assets, transfer, assignment, lease, conveyance property or exchange of any Property or the rendering of any serviceservices) with, or for the benefit of, with any Affiliate of the Company Publishing (an "AFFILIATE TRANSACTION"), unless:
(1) the terms of such Affiliate Transaction are
(A) fair and reasonable to the Company other than Publishing or such a Wholly Owned Restricted Subsidiary, as the case may beor, and
if both of The Telegraph and Southam are Restricted Subsidiaries, a Restricted Subsidiary) unless (Ba) such transaction or series of related transactions is on terms that are no less favorable to the Company Publishing or such Restricted Subsidiary, as the case may be, than those that could would be obtained available in a comparable transaction in arm's-length dealings with an unrelated third party and (b) with respect to any transaction with a Person that is not an Affiliate or series of the Company;
(2) if such Affiliate Transaction involves related transactions involving aggregate payments or value in excess of $1.0 million5,000,000, the Company obtains and promptly Publishing delivers an Officers' Certificate to the Trustee a resolution certifying that such transaction or series of its Board related transactions complies with clause (a) above and such transaction or series of Directors (including related transactions has been approved by a majority of the disinterested members Independent Directors of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor provided that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(1) any transaction or series of related transactions between otherwise permitted under this paragraph (other than any transaction or series of related transactions with respect to the Company making of any Permitted Investment pursuant to clause (ix) of the definition of "Permitted Investment" or any Restricted Payment permitted pursuant to Section 10.09 (other than those referred to in clause (vi) of paragraph (b) thereof) pursuant to which Publishing or any Restricted Subsidiary shall receive or render value exceeding $15,000,000 shall not be permitted 120 120 unless, prior to the consummation of any such transaction or series of related transactions, Publishing shall have received an opinion, from an independent nationally recognized investment banking firm or firm experienced in the appraisal or similar review of similar types of transactions, that such transaction is fair to Publishing from a financial point of view; provided further, that this covenant shall not apply to (i) transactions or agreements as in effect or securities outstanding on the date of the Indenture (provided that any amendment to any existing agreement (including the Services Agreement and one the Business Opportunities Agreement), and any transaction pursuant to the Business Opportunities Agreement, shall require approval pursuant to this covenant; notwithstanding the foregoing, any amendment to the Services Agreement or more Restricted Subsidiaries the Business Opportunities Agreement shall require the approval of a majority of the Independent Directors); (ii) directors' fees approved by the Board of Directors; (iii) any employee benefit plan or between two arrangement entered into or more made available to officers or other employees of Publishing or the Restricted Subsidiaries in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock ; (on a fully diluted basisiv) of any such Restricted Subsidiary is owned sales by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation Publishing and employee benefit arrangements, with an officer or director of the Company or any of the its Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) loans and advances to employees made their products in the ordinary course of business on arm's-length terms; (v) tax payments pursuant to a Tax Sharing Agreement to the extent that the aggregate amount of such payments do not exceed the aggregate amount of the tax payments that Publishing and the Restricted Subsidiaries would have been required to make if they alone constituted a single consolidated tax group; (vi) loans, advances, dividends or distributions by FDTH, DTH or Publishing to Holl▇▇▇▇▇ ▇▇▇ernational in amounts and for the purpose permitted by Section 10.09(b)(v) and (vii); (vii) payments made to Holl▇▇▇▇▇ ▇▇▇. pursuant to the Services Agreement that constitute the reimbursement for the fair value (as determined by a majority of the Independent Directors serving on an Independent Committee) of services received by Publishing or a Restricted Subsidiary consistent with past practices; and (viii) the past practices issuance or redemption, retraction or transfer of or payment of dividends, distributions or other amounts on Mirror Preferred by DTH or FDTH to an Argsub, but only to the Company or extent that such Restricted SubsidiaryArgsub simultaneously, as the case may be, PROVIDED that issues or redeems or pays dividends, distributions or other amounts (or is deemed to have taken any such loans and advances do not exceed $1.0 million action) to any one employee and $5.0 million in the aggregate at any one time outstanding;
(5) agreements in effect on the Issue Date and any modifications, extensions DTH or renewals thereto that are no less favorable to the Company or any Restricted Subsidiary than such agreement as in effect on the Issue Date; and
(6) sales of accounts receivable, or participations thereinFDTH, in connection with any Receivables Facility.each case in equivalent amounts. 121 121
Appears in 1 contract
Sources: Senior Subordinated Indenture (Hollinger International Publishing Inc)
Limitation on Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, conduct any business enter into, renew or enter into or suffer to exist extend any transaction or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance lease or exchange of any Property property or assets, or the rendering of any service) with, with any Holder (or for any Affiliate of such Holder) of 10% or more of any class of Capital Stock of the benefit of, Parent or with any Affiliate of the Company (an "AFFILIATE TRANSACTION")Parent or any of its Restricted Subsidiaries, unless:
(1) the in each case involving consideration in excess of $2,500,000, except upon terms of such Affiliate Transaction are
(A) fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and
(B) no that are not materially less favorable to the Company Parent or such Restricted Subsidiary, as the case may be, Subsidiary than those that could be obtained obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm'sarm’s-length transaction with a Person that is not such a Holder or an Affiliate Affiliate.
(b) The limitation set forth in Section 4.12(a) does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the Company;
disinterested directors of the Board of Directors of the Parent or (2B) if such Affiliate Transaction involves aggregate payments for which the Parent or value in excess of $1.0 million, the Company obtains and promptly any Restricted Subsidiary delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor of a nationally recognized investment banking, appraisal or accounting firm stating that the transaction is fair to the Company Parent or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between the Parent and any of its Restricted Subsidiaries or solely between Restricted Subsidiaries;
(3) the payment of reasonable fees and compensation to, and indemnification and similar arrangements on behalf of, current, former or future directors of the Parent or any Restricted Subsidiary;
(4) the issuance or sale of Capital Stock (other than Disqualified Stock) of the Parent;
(5) any Restricted Payments not prohibited by Section 4.09;
(6) any contracts, instruments or other agreements or arrangements in each case as in effect on the date of this Indenture, and any transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplemental thereto or any replacement thereof entered into from time to time, as long as such agreement or arrangements as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Parent and the Restricted Subsidiaries.Subsidiaries at the time executed than the original agreement or arrangements as in effect on the date of this Indenture;
(b7) Without regard to any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the foregoing limitations, the Company Parent or any Restricted Subsidiary may enter into with current, former or suffer future officers and employees of the Parent or such Restricted Subsidiary and the payment of compensation to exist officers and employees of the following:
Parent or any Restricted Subsidiary (1) any transaction including amounts paid pursuant to employee benefit plans, employee stock option or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries similar plans), in each case in the ordinary course of business, PROVIDED that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2) any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit arrangements, with an officer or director of the Company or any of the Restricted Subsidiaries in his or her capacity as an officer or director, so long as the Board of Directors in good faith shall have approved the terms thereof;
(4) 8) loans and advances to officers and employees of the Parent or any Restricted Subsidiary or guarantees in respect thereof (or cancellation of such loans, advances or guarantees), for bona fide business purposes, including for reasonable moving and relocation, entertainment and travel expenses and similar expenses, made in the ordinary course of business and consistent with the past practices of the Company or such Restricted Subsidiary, as the case may be, PROVIDED that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstandingpractice;
(59) agreements in effect on transactions with a Person that is an Affiliate of the Issue Date Parent solely because the Parent, directly or indirectly, owns Capital Stock of or controls such Person;
(10) any transaction with a Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; or
(11) the entering into or amending of any tax sharing, allocation or similar agreement and any modificationspayments thereunder.
(c) Notwithstanding Section 4.12(a) and 4.12(b), extensions any transaction or renewals thereto that are no less favorable series of related transactions covered by Section 4.12(a) and not covered by clauses (2) through (11) of Section 4.12(b):
(i) the aggregate amount of which exceeds $10,000,000 in value shall be approved or determined to be fair in the Company manner provided for in Section 4.12(b)(1)(A) or any Restricted Subsidiary than such agreement as in effect on the Issue Date(B); and
(6ii) sales the aggregate amount of accounts receivable, or participations therein, which exceeds $25,000,000 in connection with any Receivables Facilityvalue shall be determined to be fair in the manner provided for in Section 4.12(b)(1)(B).
Appears in 1 contract