Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), other than (a) Affiliate Transactions described in the last paragraph of this Section 4.12; and (b) Affiliate Transactions on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to: (1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company; (2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture; (3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate; (4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture; (5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company; (6) a Phosphates Combination Transaction; (7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08; (8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture; (9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and (10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 6 contracts
Sources: Supplemental Indenture (Mosaic Crop Nutrition, LLC), Supplemental Indenture (Mosaic Crop Nutrition, LLC), Supplemental Indenture (Mosaic Co)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $1.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and any employment, severance or consulting agreement or other compensation paid to and indemnity provided on behalf of officersagreement, directorsarrangement or plan, employees or consultants of any amendment thereto, entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a senior officer Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) payment of reasonable directors’ fees, consulting fees and other benefits to persons who are not otherwise Affiliates of the Company;
(25) transactions exclusively between or among provision of officers’ and directors’ indemnification and insurance in the Company and any ordinary course of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited business to the extent permitted by any provision contained in this Indenturelaw;
(36) any agreement in effect on sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateCompany;
(47) transactions between Permitted Investments and Restricted Payments that are permitted by Section 4.07 hereof;
(8) any transaction in which the Company and/or or its Restricted Subsidiaries, on as the one handcase may be, and deliver to the Affiliate GuarantorsTrustee a letter from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the otherCompany or its Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the initial paragraph above;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms ) materially no less favorable to the Company and or its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyperson, in each case, as is reasonably determined in the good faith by the Board of Directors or a senior officer determination of the Company;’s Board of Directors, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(910) transactions between any of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with Person, a Qualified Securitization Transactiondirector of which is also a director of the Company or any direct or indirect parent of the Company; provided, in each casehowever, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction director abstains from voting as a director of the type set forth in clause (7) Company or (8) of such direct or indirect parent, as the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventcase may be, on any matter involving such other Person.
Appears in 6 contracts
Sources: Fourth Supplemental Indenture (Whiting Petroleum Corp), Fifth Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) the Company must approve each delivers to the Trustee with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 50.0 million. This approval must be evidenced by , a board resolution that states that such board has determined that of the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary Board of Directors of the Company enters into set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that involves aggregate payments such Affiliate Transaction or other assets with series of related Affiliate Transactions has been approved by a fair market value in excess majority of $30.0 millionthe disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, then prior therefore, will not be subject to the consummation provisions of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of agreements that are identified in Schedule I to this Indenture, as reasonably determined such agreements are in good faith by effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and its Restricted Subsidiaries in any material respect than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company’s Board , including reimbursement or advancement of Directors or a senior officer out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(27) transactions exclusively between Permitted Investments or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions Payments that are not otherwise prohibited permitted by any provision contained in this IndentureSection 4.07;
(3) any agreement 8) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date date of this Indenture and as in effect on it may be amended, provided that any such date or as thereafter amended in a manner amendment is not materially less favorable to the Holders of Notes Company in any material respect than the agreement prior to such amendment; and
(9) in the aggregate;
(4) transactions between case of contracts for the Company and/or its Restricted Subsidiariespurchase or sale of Hydrocarbons or activities or services reasonably related thereto, on the one handor other operational contracts, and the Affiliate Guarantors, on the other, any such contracts that are entered into in the ordinary course of business and otherwise on terms substantially similar to those contained in compliance with the terms of this Indenture;
(5) (a) transactions between similar contracts entered into by the Company and/or or any of its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) with third parties or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are otherwise on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as Subsidiaries than those that would be available in a whole, than the terms which reasonably would have been obtained from transaction with an unrelated third party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 3 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or permit suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets or property or the rendering of any services) with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”)) involving aggregate consideration to or from the Company or a Restricted Subsidiary in excess of $10,000,000, other thanunless:
(a1) Affiliate Transactions described in the last paragraph such transaction or series of this Section 4.12; and
(b) Affiliate Transactions related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably have been obtained at that time be available in a comparable arm’s-length transaction by with unrelated third parties or, if in the good faith judgment of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant such Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(I) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced 25,000,000 but no greater than $50,000,000, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this covenant; and
(II) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50,000,000, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of Affiliate Transactions has been approved by a board resolution that states that majority of the Disinterested Directors of the Company, if any, (or, if there is only one Disinterested Director, such board has determined that Disinterested Director).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the transaction complies with the foregoing provisions. If provisions of Section 4.11(a):
(1) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described made in the preceding paragraphs ordinary course of this Section 4.12 do business in an aggregate amount not apply to:to exceed $5,000,000 outstanding at any one time;
(12) reasonable fees and compensation paid to and indemnity provided on behalf indemnities of officers, directors, employees and other agents of the Company or consultants any Restricted Subsidiary permitted by corporate charter or other organizational document, bylaw or statutory provisions;
(3) the payment of reasonable and customary fees to directors of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by who are not employees of the Company or any Affiliate;
(4) the Company’s Board of Directors or a senior officer of the Companyemployee compensation and other benefit arrangements;
(25) transactions exclusively between or among the Company and any of its the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(36) any agreement Restricted Payment permitted to be paid pursuant to Section 4.07;
(7) any transactions undertaken pursuant to any contracts in existence on the Issue Date (as in effect on the Issue Date as in effect Date) and any renewals, replacements or modifications of such contracts (pursuant to new transactions or otherwise) on such date or as thereafter amended in a manner not materially terms no less favorable to the Holders of the Notes than those in effect on the aggregateIssue Date;
(4) transactions between 8) in the Company and/or its Restricted Subsidiariescase of contracts for drilling, on the one handstoring, and the Affiliate Guarantorsgathering, on the otherprocessing, treating, transporting or disposing of hydrocarbons or services reasonably related thereto or other operation-type contracts, any such contracts that are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5x) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, which are fair to the Company and its Restricted Subsidiaries, taken as a whole, in the good faith determination of the Board of Directors of the Company or the senior management thereof or (y) which are on terms no substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties or, if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, that the terms are on the whole not materially less favorable than those that would be reasonably expected to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained be available from third parties on an unrelated party, in each casearm’s-length basis, as is reasonably determined in good faith by the Board Company;
(9) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of Directors the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;
(10) any sale or other issuance of Equity Interests (other than Disqualified Capital Stock) of the Company to, or receipt of a capital contribution from, an Affiliate (or a senior officer Person that becomes an Affiliate) of the Company;
(611) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made transaction in compliance with Section 4.09 of this Indenture;
(9) transactions between any of which the Company or any of its Subsidiaries Restricted Subsidiaries, as the case may be, deliver to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction meets the requirements of Section 4.11(a)(1);
(12) any transaction between the Company or any Restricted Subsidiary on the one hand and any Securitization Entity Person deemed to be an Affiliate solely because a director of such Person is also a director of the Company or a Restricted Subsidiary, on the other hand; provided that such director abstains from voting as a director of the Company or the Restricted Subsidiary, as applicable, in connection with a Qualified Securitization Transactionthe approval of the transaction; and
(13) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, case in the ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in compliance with this Indenture; provided that such transactions are on terms substantially similar to those obtained by the Company or any Restricted Subsidiary in similar transactions with third parties or, if neither the Company nor any Restricted Subsidiary has entered into a similar transaction with a third party, that are on the whole not otherwise prohibited materially less favorable than those that would be reasonably expected to be available from third parties on an arm’s-length basis, as determined in good faith by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCompany.
Appears in 3 contracts
Sources: Indenture (Comstock Resources Inc), Indenture (Comstock Resources Inc), Indenture (Comstock Resources Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5.0 million, other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and in arm's-length dealings with an unrelated Person. The Board of Directors or a senior officer of Person or, if there is no such comparable transaction, on terms that are fair and reasonable to the Company must approve each or such Restricted Subsidiary; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million. This approval must be evidenced , an Officer's Certificate certifying that such Affiliate Transaction complies with clause (1) above; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company approving the Affiliate Transaction approved by a board resolution that states that such board majority of the disinterested members thereof (or if the Board of Directors has determined no disinterested directors, all of the members of the Board of Directors); provided that the transaction complies requirements of clause (2) above are not applicable to any Affiliate Transactions in the ordinary course of business with an Affiliate engaged in any business conducted by the Company or any of its Subsidiaries or joint ventures on the Initial Issuance Date (or a business that is reasonably complementary or related to the foregoing provisions. If or developments, extensions or expansions of the foregoing).
(b) The following shall be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, any other employee compensation plan or arrangement, officer or director indemnification agreement, director compensation package, severance agreement, collective bargaining agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business with any present or former director, employee or consultant of the Company, any Restricted Subsidiary or any Affiliate of the Company, and payments, awards, grants or issuance of securities pursuant thereto;
(2) transactions between or among the Company and its Restricted Subsidiaries;
(3) Permitted Investments and Restricted Payments that are permitted by the provisions of the Indenture;
(4) loans or advances to officers, directors, employees and consultants of the Company or any Restricted Subsidiary made in the ordinary course of business and consistent with past practices of the Company enters into and its Restricted Subsidiaries and other advances to employees in an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of amount not to exceed $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:2.0 million outstanding at any one time;
(15) reasonable fees customary compensation, indemnification and compensation paid other benefits made available to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers' and directors' liability insurance;
(6) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(7) any transaction in which the Company or any of its Restricted Subsidiaries Subsidiaries, as reasonably determined in good faith by the Company’s Board case may be, delivers to the Trustee an opinion, from an accounting, appraisal or investment banking firm of Directors national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a senior officer financial point of view or that such transaction meets the requirements of clause (1) of Section 4.11(a);
(8) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(29) transactions exclusively between pursuant to agreements or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement arrangements in effect on the Issue Initial Issuance Date that are described in the Offering Memorandum, or any amendment, modification, or supplement thereto or replacement thereof, as in effect on long as such date agreement or arrangement, as thereafter amended in a manner so amended, modified, supplemented or replaced, is not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable more disadvantageous to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated partyagreement or arrangement in existence on the Initial Issuance Date;
(10) any transactions entered into in connection with the Spin-Off, including pursuant to the Distribution Agreement, the Tax Matters Agreement, the Amended and Restated Transition Services Agreement, the Employee Matters Agreement and the Series B Exchange Agreement, and including the payment of any expense of SEACOR and its subsidiaries (other than the Company and its Subsidiaries) incurred in connection with the Spin-Off, in each case, as is reasonably determined in good faith to the extent approved by the Board of Directors or a senior officer of the CompanyCompany and disclosed in the Offering Memorandum;
(611) a Phosphates Combination Transaction;
(7) the issuance pledges of a guarantee by the Company and/or any Equity Interests of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureUnrestricted Subsidiaries; and
(1012) any transaction of the type set forth transactions entered into in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventgood faith which provide for shared services and/or facilities arrangements and which provide cost savings and/or other operational efficiencies.
Appears in 3 contracts
Sources: Indenture (Era Group Inc.), Indenture (Era Group Inc.), Indenture (Seacor Holdings Inc /New/)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or permit 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 its Affiliates the Company involving aggregate payments or value in excess of $40.0 million (each, an “Affiliate Transaction”), other thanunless:
(ai) the terms of such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that Transaction, taken as a whole, are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably have been be expected to be obtained at that time in a comparable arm’s-length transaction by at the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer time of the Company must approve each transaction with a Person that is not an Affiliate of the Company, and
(ii) if such Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 75.0 million. This approval must be , the Board of Directors of the Company (including at least a majority of the disinterested members of the Board of Directors of the Company) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (a)(i) of this Section 4.14 as evidenced by a board resolution that states that such board has determined that Board Resolution delivered to the transaction complies with Trustee.
(b) Notwithstanding (and without the need to comply with) the foregoing provisions. If limitation, the Company or any Restricted Subsidiary of may enter into or suffer to exist the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply tofollowing:
(1i) reasonable fees any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(ii) any Restricted Payment permitted to be made pursuant to Section 4.10 hereof or any Permitted Investment;
(iii) director, officer, employee or consultant indemnification agreements entered into in good faith and approved by the Board of Directors of the Company;
(iv) the payment of compensation (including amounts paid pursuant to and indemnity provided on behalf employee benefit plans) for the personal services of officers, directors, directors and employees or consultants of the Company or any of its the Restricted Subsidiaries Subsidiaries, whether in cash, securities or otherwise;
(v) 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 reasonably determined the case may be; provided that such loans and advances do not exceed $15.0 million in good faith by the Company’s Board aggregate at any one time outstanding;
(vi) the issuance or sale of Directors or a senior officer any Capital Stock (other than Disqualified Capital Stock) of the Company;
(2vii) (x) transactions exclusively between with customers, suppliers, contractors, joint venture partners or among the Company and any purchasers or sellers of its Restricted Subsidiaries goods or exclusively between or among such Restricted Subsidiariesservices, provided such transactions in each case which are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and consistent with industry practice (including, without limitation, pursuant to agreements in existence on the Issue Date) and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsIndenture and, taken as a whole, are fair on terms not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would reasonably be expected to be obtained in a comparable arm’s-length transaction at the time of the transaction with a Person that is not an Affiliate of the Company and its Restricted Subsidiaries(y) transactions pursuant to other agreements existing on the Issue Date and any amendment to or extension or replacement thereof on terms, as determined in good faith by the Company, taken as a whole, or are on terms no not materially less favorable to the Company and its or a Restricted SubsidiariesSubsidiary, taken as a wholeapplicable, than either (A) those that would reasonably be expected to be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company or (B) the terms which reasonably would have been obtained from an unrelated partyof the transaction being amended, in each case, as is reasonably determined in good faith extended or replaced;
(viii) payments or other transactions pursuant to any tax-sharing agreement approved by the Board of Directors of the Company and entered into in good faith between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is a part of a consolidated group for tax purposes;
(ix) payments from Affiliates to the Company or a senior officer Restricted Subsidiary for operational, management and financial services pursuant to agreements that are on terms not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would reasonably expected to be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10x) any transaction sale, conveyance or other transfer of the type set forth Receivables and other related assets customarily transferred in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventa Qualified Receivables Transaction and related customary transactions.
Appears in 3 contracts
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of Property or the rendering of any services) with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) Affiliate Transactions described in the last paragraph such transaction or series of this Section 4.12; and
(b) Affiliate Transactions related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably have been obtained at that time be available in a comparable transaction by in arm’s-length dealings with an unrelated third party; and
(2) the Company or delivers to the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Trustee:
(i) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 1.0 million but no greater than $10.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of Affiliate Transactions has been approved by a board resolution that states that such board has determined that majority of the transaction complies with Disinterested Directors of the foregoing provisions. If Company.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described made in the preceding paragraphs ordinary course of this Section 4.12 do business in an aggregate amount not apply to:to exceed $500,000 outstanding at any one time;
(12) reasonable fees and compensation paid to and indemnity provided on behalf indemnities of officers, directors, employees and other agents of the Company or consultants any Restricted Subsidiary permitted by corporate charter or other organizational document, bylaw or statutory provisions;
(3) the payment of reasonable and customary fees and expenses to directors of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by who are not employees of the Company or any Affiliate;
(4) the Company’s Board of Directors or a senior officer of the Companyemployee compensation and other benefit arrangements;
(25) transactions exclusively between or among the Company and any of its the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Amended Indenture; and
(106) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Restricted Payment permitted to be paid pursuant to Section 4.12 will not apply after the Fall-Away Event4.07.
Appears in 3 contracts
Sources: Supplemental Indenture, Securities Purchase Agreement, Indenture
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million but less than or equal to $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and has been approved by the resolution of a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any employment, severance or consulting agreement or other compensation agreement, arrangement or plan or any amendment thereto, any issuance of Capital Stock (other than Disqualified Stock) or other payments, awards or grants in cash, Capital Stock (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment, severance or consulting agreements and other compensation paid agreements, arrangements and plans, options to and indemnity provided on behalf purchase Capital Stock (other than Disqualified Stock) of officersthe Company, directorsrestricted stock plans, employees long-term incentive plans, stock appreciation rights plans, participation plans or consultants similar employee benefits plans, in each case arising in the ordinary course of business of the Company or any of its Restricted Subsidiaries as reasonably determined Subsidiaries;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in good faith by the Company’s Board such Person, including, without limitation, any transaction with a joint venture or similar entity (other than an Unrestricted Subsidiary);
(4) payment of Directors or a senior officer reasonable directors’ fees, consulting fees and other benefits to persons who are not otherwise Affiliates of the Company;
(25) transactions exclusively between or among provision of officers’ and directors’ indemnification and insurance in the Company and any ordinary course of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited business to the extent permitted by any provision contained in this Indenturelaw;
(36) any agreement in effect on sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateCompany;
(47) transactions between Permitted Investments and Restricted Payments that are permitted by Section 4.07 hereof;
(8) any transaction in which the Company and/or or its Restricted Subsidiaries, on as the one handcase may be, and deliver to the Affiliate GuarantorsTrustee a letter from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the otherCompany or its Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the first paragraph of this Section 4.11;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms ) materially no less favorable to the Company and or its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyperson, in each case, as is reasonably determined in the good faith by the Board of Directors or a senior officer determination of the Company;’s Board of Directors, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(910) transactions between any of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with Person, a Qualified Securitization Transactiondirector of which is also a director of the Company or any direct or indirect parent of the Company; provided, in each casehowever, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction director abstains from voting as a director of the type set forth in clause (7) Company or (8) of such direct or indirect parent, as the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventcase may be, on any matter involving such other Person.
Appears in 3 contracts
Sources: Sixth Supplemental Indenture (Whiting Petroleum Corp), Third Supplemental Indenture (Whiting Petroleum Corp), Fourth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that states is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such board has determined director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture and which is described in the Offering Memorandum, as such agreements may be amended, modified or supplemented from time to time; provided, however, that any amendment, modification or supplement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the date of this Indenture;
(9) any transaction complies with in which the foregoing provisions. If Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of the Company enters into an of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction that involves aggregate payments or other assets with a fair market value Person in excess its capacity as a holder of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees Indebtedness or consultants Capital Stock of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer Subsidiary of the Company;Company if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary; and
(212) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted with Unrestricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyPerson, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior any executive officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries involved in or otherwise familiar with respect to any Indebtedness of any Affiliate Guarantorsuch transaction, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that are on terms at least as favorable as might reasonably have been obtained at such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventtime from an unaffiliated party.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each ; and
(2) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million. This approval must be , a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction) have determined in good faith that the criteria set forth in the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a board resolution that states that such board has determined that Board Resolution. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any transaction complies with the foregoing provisions. If Company, a Restricted Subsidiary, an Investment Vehicle or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(2) Restricted Payments and Permitted Investments (including Seed Capital Investments) permitted by this Indenture;
(3) the payment by the Company or any of its Restricted Subsidiaries of management, consulting, monitoring and advisory fees, termination or indemnification payments and related reasonable expenses pursuant to the Management Agreement;
(4) payments in respect of reasonable employment, severance and any other compensation arrangements with, and fees and reasonable expenses paid to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies, or any Restricted Subsidiary, in the ordinary course of business;
(5) payments made by the Company or any Restricted Subsidiary for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by majority of the Board of Directors of the Company enters into an (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction that involves aggregate payments Transaction) in good faith;
(6) transactions in which the Company or other assets with a fair market value in excess of $30.0 million, then prior any Restricted Subsidiary delivers to the consummation of that Affiliate Transaction, the Company must obtain Trustee a favorable opinion letter from an Independent Financial Advisor as stating that such transaction is fair to the fairness of that Affiliate Transaction to the Holders of Notes Company or such Restricted Subsidiary from a financial point of view, and deliver that opinion to view or meets the Trustee. The restrictions described in requirements of clause (i) of the preceding paragraphs first paragraph of this Section 4.12 do not apply to:4.11;
(17) reasonable fees and compensation paid payments or loans (or cancellations of loans) to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiaries as reasonably determined Subsidiary which are approved by the Board of Directors of the Company in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions which are not otherwise prohibited by any provision contained in permitted under this Indenture;
(3) 8) payments made or performance under any agreement as in effect on the Issue Date as in effect on (other than the Management Agreement (which is permitted under clause (3) of the second paragraph of this Section 4.11), including additional parties that may be added subsequent to the Issue Date and any amendment thereto to the extent such date or as thereafter amended in a manner an amendment is not materially less favorable adverse to the interests of the Holders of the Notes in the aggregateany material respect;
(49) transactions between the Company and/or with customers, clients, suppliers, or purchasers or sellers of goods or services (including Parent and its Restricted Subsidiaries), on the one hand, and the Affiliate Guarantors, on the other, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between Indenture that are fair to the Company and/or or its Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(10) if otherwise permitted hereunder, the one handissuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company (other than a Subsidiary);
(11) any transaction permitted by Section 5.1;
(12) any transaction with a Receivables Subsidiary effected as part of a Receivables Facility;
(13) the Transactions and the payment of the Transaction Expenses;
(14) payments by the Company and its Restricted Subsidiaries of Mosaic that are not Affiliate Guarantorsto each other pursuant to tax sharing agreements or arrangements among Parent and its subsidiaries on customary terms (including, on the otherwithout limitation, transfer pricing initiatives);
(15) payments to investment and commercial banks (or their affiliates) for financial advisory and other investment and commercial banking services and financings provided by them in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are business on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Companyordinary commercial terms;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 2 contracts
Sources: Indenture (Nuveen Investments Holdings, Inc.), Indenture (Nuveen Investments Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guaranty with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach an "AFFILIATE TRANSACTION") except as disclosed on Schedule 4.18, an “unless:
1. the Affiliate Transaction”)Transaction is, other than
(a) or series of Related Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions are, on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted such Subsidiary and with an unrelated PersonPerson on an arm's length basis;
2. The the Company delivers to each of the Holders a resolution of the Board of Directors or a senior officer of the Company must approve each set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that involves aggregate payments such Affiliate Transaction has been approved by a majority of the independent members of the Board of Directors of the Company; provided that such Officer's Certificate shall only be required in connection with an Affiliate Transaction or other assets with a fair market value series of Related Affiliate Transactions in excess of $15.0 million5,000,000; and
3. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion valuation, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to5.17(a) hereof:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) . transactions exclusively between or among the Company and or any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this IndentureGuarantor;
(3) any agreement in effect on 2. reasonable and customary salaries and fees paid to members of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to boards of directors and officers of the Holders of Notes in the aggregateCompany and its Subsidiaries;
(4) transactions between 3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the boards of directors of the Company and/or and its Restricted SubsidiariesSubsidiaries on or after the Closing Date, on whether such Persons are current or former officers or members at the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenturetime such indemnifications or arrangements are entered into;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries4. salary, on the one handbonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and Subsidiaries of Mosaic that are not Affiliate Guarantorsother like benefits, on the otherseverance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the ordinary course of business, and (b) transactions of the type set forth including, without limitation, in clause (6) connection with any employment agreements or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to benefits arrangements between the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;employees; or
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) 5. transactions between any of or among the Company or any of its Subsidiaries Subsidiary on the one hand, and any Securitization Entity Purchaser or Holder (or their representatives), on the other hand, with respect to or in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventNote Documents.
Appears in 2 contracts
Sources: Purchase Agreement (NextWave Wireless LLC), Purchase Agreement (NextWave Wireless LLC)
Limitation on Transactions with Affiliates. The Company will On or after the Issue Date, the Issuers shall not, and will shall not permit any of its Restricted the Subsidiaries to, directly in one transaction or indirectlya series of related transactions, enter into any contract, agreement, arrangement or permit to exist any transaction or series of related transactions with, or for the benefit of, any amendment to any of its Affiliates the foregoing, with any Affiliate (eacheach of the foregoing, an “Affiliate Transaction”) (other than Exempted Affiliate Transactions), other than
unless (a1) the terms of such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that Transaction are fair and reasonable to such Issuer or such Subsidiary, and no less favorable to the Company such Issuer or the relevant Restricted such Subsidiary than those terms that would reasonably could have been obtained at that time in an arm’s length transaction with a comparable transaction by the Company or the relevant Restricted Subsidiary non-Affiliate, and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each (2) if such Affiliate Transaction that involves aggregate payments or other assets with a fair market value consideration to either party in excess of $15.0 1.0 million. This approval must be evidenced , such Affiliate Transaction(s) has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants members of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company that are disinterested in such transaction, if there are any directors who are so disinterested, and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on if such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that Transaction involves aggregate payments or other assets with a fair market value consideration to either party in excess of $5.0 million, or $1.0 million if there are no disinterested directors for such transaction, in addition the terms Issuers, prior to the consummation thereof, obtain a written favorable opinion as to the fairness of such transactions, taken as a whole, are fair transaction to the Company and its Restricted Subsidiaries, taken as Issuers from a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained financial point of view from an unrelated partyindependent investment banking firm of national reputation in the United States or, if pertaining to a matter for which such investment banking firms do not customarily render such opinions, an appraisal or valuation firm of national reputation in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness United States. Within 10 Business Days after consummation of any Affiliate GuarantorTransaction(s) (other than an Exempted Affiliate Transaction) involving consideration to either party of $1.0 million or more, the Issuers shall deliver to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of Trustee an Officers’ Certificate addressed to the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided Trustee certifying that such transactions are not otherwise prohibited by this Indenture; and
Affiliate Transaction (10or Transactions) any transaction of the type set forth in complied with clause (7) or 1), (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event2), and (3), as applicable.
Appears in 2 contracts
Sources: Indenture (Douglas Dynamics, Inc), Indenture (Douglas Dynamics, Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $1.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value consideration in excess of $30.0 million, then prior a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(b) with respect to the consummation any Affiliate Transaction or series of that related Affiliate TransactionTransactions involving aggregate consideration in excess of $50.0 million, the Company must obtain a favorable written opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes such Affiliate Transaction from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and any employment, severance or consulting agreement or other compensation paid to and indemnity provided on behalf of officersagreement, directorsarrangement or plan, employees or consultants of any amendment thereto, entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a senior officer Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) payment of reasonable directors’ fees, consulting fees and other benefits to persons who are not otherwise Affiliates of the Company;
(25) transactions exclusively between or among provision of officers’ and directors’ indemnification and insurance in the Company and any ordinary course of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited business to the extent permitted by any provision contained in this Indenturelaw;
(36) any agreement in effect on sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateCompany;
(47) transactions between Permitted Investments and Restricted Payments that are permitted by Section 4.07 hereof;
(8) any transaction in which the Company and/or or its Restricted Subsidiaries, on as the one handcase may be, and deliver to the Affiliate GuarantorsTrustee a letter from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the otherCompany or its Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the initial paragraph above;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms ) materially no less favorable to the Company and or its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyperson, in each case, as is reasonably determined in the good faith by the Board of Directors or a senior officer determination of the Company;’s Board of Directors, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(910) transactions between any of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with Person, a Qualified Securitization Transactiondirector of which is also a director of the Company or any direct or indirect parent of the Company; provided, in each casehowever, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction director abstains from voting as a director of the type set forth in clause (7) Company or (8) of such direct or indirect parent, as the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventcase may be, on any matter involving such other Person.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Whiting Petroleum Corp), First Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates Holdings (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not less favorable to the Company Holdings or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person or, if in the Company good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to Holdings or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) Holdings delivers to the TrusteeAdministrative Agent:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $10,000,000, a resolution of the Board of Directors of Holdings set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 8.05 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of Holdings; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $20,000,000, an opinion as to the fairness to Holdings or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to8.05:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or cash or equity settled equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement, consulting agreement or other compensation plan or arrangement entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business or which is customary in the Oil and compensation paid Gas Business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of Holdings and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Holdings) that is an Affiliate of Holdings solely because Holdings owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person or has nominated or appointed a person to the Board of Directors of that Person;
(4) customary compensation, indemnification and indemnity provided on behalf of other benefits made available to officers, directors, employees or consultants of the Company Holdings or a Restricted Subsidiary of Holdings, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) issuances of Equity Interests (other than Disqualified Stock) of Holdings to, or receipt of capital contributions from, Affiliates of Holdings and any dividend or distribution payable in Equity Interests (other than Disqualified Stock) of Holdings;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 8.01;
(7) transactions between Holdings or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of Holdings or such Restricted Subsidiary, as reasonably determined in good faith by the Company’s Board applicable; provided that such director abstains from voting as a director of Directors Holdings or a senior officer of the Companysuch Restricted Subsidiary, as applicable, on any matter involving such other Person;
(2) transactions exclusively between 8) the existence of, and the performance of obligations of Holdings or among the Company and any of its Restricted Subsidiaries under the terms of, any written agreement to which Holdings or exclusively between any of its Restricted Subsidiaries is a party on the date of this Agreement, as such agreements may be amended, modified, supplemented or among such Restricted Subsidiariesreplaced from time to time; provided, provided such transactions however, that any amendment, modification, supplement or replacement entered into after the date of this Agreement will be permitted to the extent that its terms are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement materially more disadvantageous, taken as a whole, to the Lenders than the terms of the agreements in effect on the Issue Date date of this Agreement (as in effect on conclusively evidenced by a Board Resolution of Holdings or such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateSubsidiary);
(49) transactions between the Company and/or any transaction in which Holdings or any of its Restricted Subsidiaries, on as the one handcase may be, and delivers to the Affiliate GuarantorsAdministrative Agent an opinion from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view or that such transaction meets the other, requirements of clause (1) of the preceding paragraph of this Section 8.05;
(10) (a) guarantees by Holdings or any of its Restricted Subsidiaries of performance of obligations of Holdings’ Unrestricted Subsidiaries in the ordinary course of business or which are customary in the Oil and Gas Business and (b) pledges by Holdings or any Restricted Subsidiary of Holdings of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Holdings’ Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of Holdings or any Restricted Subsidiary of Holdings if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of Holdings or such Restricted Subsidiary;
(12) transactions with joint venture partners, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business or which are customary in the Oil and Gas Business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Agreement similar to those contained in similar contracts entered into by Holdings or any Restricted SubsidiariesSubsidiary and unrelated third parties, on the one handor if neither Holdings nor any Restricted Subsidiary has entered into a similar contract with an unrelated third party, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherwhich are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair not materially less favorable to the Company Holdings and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated third party, in each case, as is reasonably determined in the good faith by the determination of Holdings’ Board of Directors or a senior any executive officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries Holdings involved in or otherwise familiar with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturetransaction; and
(1013) dividends and distributions to Holdings and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventUnrestricted Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Endeavour International Corp), Credit Agreement (Endeavour International Corp)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including the sale, transfer, disposition, purchase, exchange or lease of assets, property or services) with, or for the benefit of, any of its Affiliates (eachinvolving aggregate consideration in excess of $10,000,000, an “Affiliate Transaction”), other than
except: (a) Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that are no not materially less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably which could have been obtained at that time in a comparable transaction by at such time from Persons who are not Affiliates of the Company; (b) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $75,000,000, the Company shall have delivered an Officers’ Certificate to the Trustee certifying that such transaction or transactions comply with the relevant Restricted Subsidiary preceding clause (a); and an unrelated Person. The (c) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $200,000,000, such transaction or transactions shall have been approved by a majority of the Disinterested Members of the Board of Directors or a senior officer of the Company. Notwithstanding the foregoing, the restrictions set forth in this Section 10.11 shall not apply to: (i) transactions with or among the Company must approve each Affiliate Transaction that involves aggregate payments and the Restricted Subsidiaries; (ii) transactions in the ordinary course of business, or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced approved by a board resolution that states that such board has determined that majority of the transaction complies with Board of Directors of the foregoing provisions. If Company, between the Company or any Restricted Subsidiary and any Affiliate of the Company enters into an Affiliate Transaction that involves aggregate payments is a joint venture or other assets similar entity; (iii) (A) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, collective bargaining agreements, compensation or employee benefit arrangements and incentive arrangements with a fair market value in excess of $30.0 millionany officer, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees director or consultants employee of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, Subsidiary entered into in the ordinary course of business and (B) any transaction with an officer or director in the 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 any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business; (vi) transactions pursuant to agreements in effect on the Issue 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 otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms materially no less favorable to the Company and its or the applicable Restricted Subsidiaries, taken as a whole, Subsidiary than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or that Restricted Subsidiary with an unrelated partyPerson or entity, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a its senior officer management, or are 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 the Company;
Capital Stock (6other than Redeemable Capital Stock) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any capital contribution to the Company; (x) the Transactions and the National Pump Transactions, including the payment of its Subsidiaries all fees and any Securitization Entity expenses relating thereto and the payments to be made by the Company to Holdings in connection with therewith; and (xi) transactions in which Holdings or a Qualified Securitization TransactionRestricted Subsidiary, in each caseas the case may be, provided delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that the financial terms of such transactions transaction either (x) are not otherwise prohibited by this Indenture; and
fair to Holdings or such Restricted Subsidiary, as applicable, from a financial point of view (10) any transaction or words of the type set forth in clause (7similar import) or (8) y) meet the requirements of clause (a) of the definition first paragraph of “Asset Sale”. This this Section 4.12 will not apply after the Fall-Away Event10.11.
Appears in 2 contracts
Sources: Indenture (United Rentals North America Inc), Indenture (United Rentals North America Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company or the relevant such Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution Person that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into is not an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;; and
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable delivers to the Holders of Notes in the aggregate;Trustee:
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not with respect to any Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction Transaction or series of related transactions of the type set forth in (a) or (b) that involves Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $5.0 million, a Board Resolution of the Board of Directors of the Company and an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.14 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing or a comparable report, certification or recommendation by an executive compensation consulting firm of national standing, as applicable. The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of the prior paragraph:
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) payment of reasonable and customary directors fees and reasonable and customary indemnification and similar arrangements;
(3) Restricted Payments that are permitted by Section 4.10;
(4) any sale of Capital Stock (other than Disqualified Stock) of the Company; and
(5) transactions entered into under any agreement existing on December 28, 2004 (and disclosed in the Offering Memorandum or disclosed in or filed as an exhibit to the Company’s filings with the Commission pursuant to the Exchange Act through and including December 28, 2004) and any amendments or modifications thereto or replacements or renewals thereof, so long as the Board of Directors of the Company, in good faith, shall have approved the terms of such transactionsamendment, modification, replacement or renewal and deemed such amendment, modification, replacement or renewal, taken as a whole, are fair not to be materially more adverse to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to interests of the Company and its Restricted Subsidiaries, taken as a whole, Holders than the terms which reasonably would have been obtained from an unrelated partyof such agreement as in effect on December 28, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event2004.
Appears in 2 contracts
Sources: Indenture (Landrys Restaurants Inc), Indenture (Landrys Restaurants Inc)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including the sale, transfer, disposition, purchase, exchange or lease of assets, property or services) with, or for the benefit of, any of its Affiliates (eachinvolving aggregate consideration in excess of $10,000,000, an “Affiliate Transaction”), other than
except: (a) Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that are no not materially less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably which could have been obtained at that time in a comparable transaction by at such time from Persons who are not Affiliates of the Company; (b) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $75,000,000, the Company shall have delivered an Officers’ Certificate to the Trustee certifying that such transaction or transactions comply with the relevant Restricted Subsidiary preceding clause (a); and an unrelated Person. The (c) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $200,000,000, such transaction or transactions shall have been approved by a majority of the Disinterested Members of the Board of Directors or a senior officer of the Company. Notwithstanding the foregoing, the restrictions set forth in this Section 10.11 shall not apply to: (i) transactions with or among the Company must approve each Affiliate Transaction that involves aggregate payments and the Restricted Subsidiaries; (ii) transactions in the ordinary course of business, or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced approved by a board resolution that states that such board has determined that majority of the transaction complies with Board of Directors of the foregoing provisions. If Company, between the Company or any Restricted Subsidiary and any Affiliate of the Company enters into an Affiliate Transaction that involves aggregate payments is a joint venture or other assets similar entity; (iii) (A) customary directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, collective bargaining agreements, compensation or employee benefit arrangements and incentive arrangements with a fair market value in excess of $30.0 millionany officer, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees director or consultants employee of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, Subsidiary entered into in the ordinary course of business and (B) any transaction with an officer or director in the 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 any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business; (vi) transactions pursuant to agreements in effect on the Issue 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 otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms materially no less favorable to the Company and its or the applicable Restricted Subsidiaries, taken as a whole, Subsidiary than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or that Restricted Subsidiary with an unrelated partyPerson or entity, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a its senior officer management, or are 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 the Company;
Capital Stock (6other than Redeemable Capital Stock) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any capital contribution to the Company; (x) the Transactions and the National Pump Transactions, including the payment of its Subsidiaries all fees and any Securitization Entity expenses relating thereto and the payments to be made by the Company to Holdings in connection with therewith; and (xi) transactions in which Holdings or a Qualified Securitization TransactionRestricted Subsidiary, in each caseas the case may be, provided delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that the financial terms of such transactions transaction either (x) are not otherwise prohibited by this Indenture; and
fair to Holdings or such Restricted Subsidiary, as applicable, from a financial point of view (10) any transaction or words of the type set forth in clause (7similar import) or (8) y) meet the requirements of clause (a) of the definition first paragraph of “Asset Sale”. This this Section 4.12 will not apply after the Fall-Away Event10.11.
Appears in 2 contracts
Sources: Indenture (United Rentals North America Inc), Indenture (United Rentals North America Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $25.0 million (each, an “Affiliate Transaction”), other thanunless:
(ai) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms terms, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and an unrelated Person. The Board of Directors or a senior officer of when such transaction is taken in its entirety; and
(ii) the Company must approve each delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 75.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officers and directors of Affiliates of the Company);
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that states is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with (a) the terms of agreements or arrangements in effect on the Issue Date, including the Services Agreement, the Partnership Agreement and the other agreements governing the Transactions, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such board has determined agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the transaction complies Affiliate is treated no more favorably than other holders of such Indebtedness;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the foregoing provisions. If Partnership Agreement as it may be amended, modified or supplemented from time to time, so long as any such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the Company enters into an Affiliate Transaction that involves aggregate payments benefit of lenders or other assets with a fair market value creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” so long as any such transaction described in this clause (b), if involving aggregate consideration in excess of $30.0 50.0 million, then prior to has been approved by a majority of the consummation disinterested members of that Affiliate Transactionthe Board of Directors of the Company or the Conflicts Committee of the Company;
(x) transactions between the Company and any Person, a director of which is also a director of the General Partner or, if applicable, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewCompany, and deliver that opinion such common director is the sole cause for such other Person to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants be deemed an Affiliate of the Company or any of its Restricted Subsidiaries Subsidiaries; provided, however, that such director abstains from voting as reasonably determined in good faith by the Company’s Board of Directors or a senior officer director of the CompanyGeneral Partner or, if applicable, the Company on any matter involving such other Person;
(2xi) transactions exclusively between or among any transaction in which the Company and or any of its Restricted Subsidiaries Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or exclusively between or among such Restricted Subsidiaries, provided Subsidiary from a financial point of view or that such transactions are not otherwise prohibited by any provision contained in this Indenture;transaction meets the requirements of clause (i) of Section 4.11(a); and
(3xii) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariescase of contracts for supplies, on the one handraw materials, and the Affiliate Guarantorsinventory or other goods or services or activities reasonably related or ancillary thereto, on the otheror other operational contracts, any such contracts are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries Restricted Subsidiary and unrelated third parties, or if neither the Company nor any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided then the terms are no less favorable than those that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallwould reasonably be expected to be available from third parties on an arm’s-Away Eventlength basis.
Appears in 2 contracts
Sources: Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would could reasonably be expected to have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors Person or a senior officer of is otherwise fair to the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any and its Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes Subsidiaries from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee. The restrictions described Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with the preceding paragraphs clause (1) of this Section 4.12 do 4.11 and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $100.0 million, a resolution of the Board of Directors of the General Partner set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with the preceding clause (1) of this Section 4.11 and has been approved by a majority of the disinterested members of the Board of Directors. The following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment agreement or arrangement, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indentureany payments or awards pursuant thereto;
(5) (a2) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries or among any of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in such Person;
(4) transactions permitted by the terms of (a) the Partnership Agreement with respect to accounting, taken treasury, information technology, insurance and other corporate services, general overhead and other administrative matters and expense reimbursements and (b) any other agreements existing on the date of this Indenture, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less favorable to the Company than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company, a wholeRestricted Subsidiary of the Company or the General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Restricted Payments or Permitted Investments that are permitted by Section 4.07; and
(8) in the case of contracts for the provision of gathering, treating or compression services with respect to Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms no substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties or otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as Subsidiaries than those that would be available in a whole, than the terms which reasonably would have been obtained from transaction with an unrelated third party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 2 contracts
Sources: Indenture (Chesapeake Midstream Partners Lp), Indenture (Chesapeake Midstream Partners Lp)
Limitation on Transactions with Affiliates. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Parent, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Parent delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to5.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf any transaction or series of officersrelated transactions involving aggregate consideration of less than $10.0 million;
(2) any employment, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company Parent or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenturebusiness;
(3) transactions between or among any agreement in effect on of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateParent and its Restricted Subsidiaries;
(4) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns an Equity Interest in such Person;
(5) transactions effected in accordance with the terms of agreements that are identified or incorporated by reference in the Prospectus Supplement, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Parent in any material respect than the agreement so amended or replaced;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Parent or a Restricted Subsidiary or Affiliate of the Parent, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Parent;
(8) Restricted Payments that are permitted by Section 5.07 or Permitted Investments;
(9) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the date of this Indenture and as it may be amended, provided that any such amendment is not less favorable to the Parent in any material respect than the agreement prior to such amendment;
(10) transactions between the Company and/or Parent or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Parent or any direct or indirect parent company of the Parent, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Parent or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Parent or any direct or indirect parent company of the Parent, as the case may be, on any transaction with such other Person;
(11) leases entered into by the Parent or any of its Restricted Subsidiaries, on the one handas lessor, and an Unrestricted Subsidiary or Joint Venture of the Affiliate GuarantorsParent or such Restricted Subsidiary, on as lessee, with respect to a pipeline or similar asset operated by such Unrestricted Subsidiary or Joint Venture; provided that the otherRemaining Present Value of any such leases shall not exceed $30.0 million in the aggregate; and
(12) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Parent or its Restricted Subsidiaries and otherwise in compliance third parties, or if neither the Parent or any Restricted Subsidiary has entered into a similar contract with a third party, then the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained those available from third parties on an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallarm’s-Away Eventlength basis.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Summit Midstream Partners, LP), First Supplemental Indenture (Summit Midstream Partners, LP)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guaranty with, or for the benefit of, any Affiliate of its Affiliates the Company (each, each an “Affiliate Transaction”)) except as disclosed on Schedule 4.18, other thanunless:
(a) 1. the Affiliate Transaction is, or series of Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions are, on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted such Subsidiary and with an unrelated PersonPerson on an arm’s length basis;
2. The the Company delivers to each of the Holders a resolution of the Board of Directors or a senior officer of the Company must approve each set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that involves aggregate payments such Affiliate Transaction has been approved by a majority of the independent members of the Board of Directors of the Company; provided that such Officer’s Certificate shall only be required in connection with an Affiliate Transaction or other assets with a fair market value series of Affiliate Transactions in excess of $15.0 million5,000,000; and
3. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion valuation, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trusteeprovisions of Section 5.17(a) hereof:
1. The restrictions described transactions between or among the Company or any Guarantor;
2. reasonable and customary salaries and fees paid to members of the Boards of Directors and officers of the Company and its Subsidiaries;
3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of the Company and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into; or
4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the preceding paragraphs ordinary course of business, including, without limitation, in connection with any employment agreements or benefits arrangements between the Company and any of its Subsidiaries with employees.
(c) Notwithstanding any other provision of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers5.17, directors, employees any transactions between or consultants of among the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted SubsidiariesAffiliates, on the one hand, and the Affiliate Guarantors, any Purchaser or Holder (or their representatives) on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one other hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transactionthe Notes, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) First Lien Notes or (8) of the definition of “Asset Sale”. This Section 4.12 Exchange Notes will be deemed an Affiliate Transaction but will not apply after be subject to the Fall-Away Eventprovisions of Section 5.17(a)(3).
Appears in 2 contracts
Sources: Third Lien Subordinated Exchange Note Exchange Agreement (Manchester Financial Group, LP), Third Lien Subordinated Exchange Note Exchange Agreement (Navation, Inc.)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced by a board resolution that states , an Officers’ Certificate certifying that such board has determined that the transaction Affiliate Transaction complies with the foregoing provisions. If the Company or this Section 4.11; and
(b) with respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million, then prior a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the consummation provisions of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and compensation paid payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and indemnity provided on behalf provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, directorsor receipt of capital contributions from, employees Affiliates of the Company;
(6) any Permitted Investments or consultants Restricted Payments that are permitted by Section 4.07;
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by under the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among terms of, any written agreement to which the Company and or any of its Restricted Subsidiaries is a party on the date of this Indenture and which is described in the Offering Memorandum, as such agreements may be amended, modified or exclusively between supplemented from time to time; provided, however, that any amendment, modification or among such Restricted Subsidiaries, provided such transactions supplement entered into after the date of this Indenture will be permitted to the extent that its terms are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsmore disadvantageous, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to Holders of the Company and its Restricted Subsidiaries, taken as a whole, Notes than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) agreements in effect on the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 date of this Indenture;
(9) transactions between any of transaction in which the Company or any of its Subsidiaries and any Securitization Entity in connection with Restricted Subsidiaries, as the case may be, delivers to the Trustee a Qualified Securitization Transactionletter from an accounting, in each case, provided appraisal or investment banking firm of national standing stating that such transactions are not otherwise prohibited by transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of this IndentureSection 4.11; and
(10) (a) guarantees by the Company or any transaction of its Restricted Subsidiaries of performance of obligations of the type set forth Company’s Unrestricted Subsidiaries in clause the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (7b) pledges by the Company or (8) any Restricted Subsidiary of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCompany’s Unrestricted Subsidiaries.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Transactions with Affiliates. The Company (a) Parent Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guaranty with, or for the benefit of, any Affiliate of its Affiliates Parent Issuer (each, each an “Affiliate Transaction”)) except as disclosed on Schedule 4.18, other thanunless:
(a) 1. the Affiliate Transaction is, or series of Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions are, on terms that are no less favorable to the Company Parent Issuer or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent Issuer or the relevant Restricted such Subsidiary and with an unrelated PersonPerson on an arm’s length basis;
2. The Parent Issuer delivers to each of the Holders a resolution of the Board of Directors or of Parent Issuer set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that such Affiliate Transaction has been approved by a senior officer majority of the Company must approve each independent members of the Board of Directors of Parent Issuer; provided that such Officer’s Certificate shall only be required in connection with an Affiliate Transaction that involves aggregate payments or other assets with a fair market value series of Affiliate Transactions in excess of $15.0 million5,000,000; and
3. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness fairness, to Parent Issuer or such Subsidiary, of that such Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion issued by an accounting, valuation, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trusteeprovisions of Section 5.17(a) hereof:
1. The restrictions described transactions between or among any Guarantors;
2. reasonable and customary salaries and fees paid to members of the Boards of Directors and officers of Parent Issuer and its Subsidiaries;
3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of Parent Issuer and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into; or
4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the preceding paragraphs ordinary course of business, including, without limitation, in connection with any employment agreements or benefits arrangements between Parent Issuer and any of its Subsidiaries with employees.
(c) Notwithstanding any other provision of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers5.17, directors, employees any transactions between or consultants of the Company among Parent Issuer or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted SubsidiariesAffiliates, on the one hand, and the Affiliate Guarantors, any Purchaser or Holder (or their representatives) on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one other hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transactionthe Notes, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) First Lien Notes or (8) of the definition of “Asset Sale”. This Section 4.12 Second Lien Notes will be deemed an Affiliate Transaction but will not apply after be subject to the Fall-Away Eventprovisions of Section 5.17(a)(3).
Appears in 2 contracts
Sources: Third Lien Subordinated Exchange Note Exchange Agreement (Manchester Financial Group, LP), Third Lien Subordinated Exchange Note Exchange Agreement (Navation, Inc.)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company or the relevant such Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 2.5 million. This approval must be evidenced by , a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary Board Resolution of the Company enters into and an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.14 and that involves such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 10.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Restricted Subsidiary of that such Affiliate Transaction to the Holders or series of Notes related Affiliate Transactions from a financial point of viewview issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, and deliver that opinion therefore, shall not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs of this Section 4.12 do not apply toprior paragraph:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officerstransactions between or among the Company and/or its Restricted Subsidiaries;
(2) any employment agreement, directorsemployee benefit plan, employees officer or consultants of director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise payments pursuant thereto;
(3) transactions with any Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) transactions pursuant to or contemplated by any agreement of, or any instrument entered into or issued by, the Company or any Restricted Subsidiary as in compliance effect on the date hereof (as such agreement or instrument is disclosed in the Offering Memorandum with respect to the terms offering of this Indenturethe Notes), or any amendment thereto or any replacement agreements so long as any such amendment or replacement agreement is not more disadvantageous to the holders in any material respect than the original agreement or instrument as in effect on the date hereof;
(5) Restricted Payments that do not violate the provisions of Section 4.10;
(a6) transactions between payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;
(7) loans or advances or reasonable compensation to employees of the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made loans to employees of the Company in compliance connection with Section 4.09 the purchase of this IndentureEquity Interests of the Company by such employees up to $3.0 million in the aggregate;
(9) transactions between any payment of fees by the Company to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. LLC for any financial or any of its Subsidiaries mergers and any Securitization Entity acquisitions advisory, financing, underwriting or placement services (whether structured as a fee or an underwriting discount) in connection with a Qualified Securitization Transactionfinancings, in each caseacquisitions or divestitures, provided that (a) the fees for any such transactions are transaction shall not otherwise prohibited exceed the greater of 2% of the transaction value and 5% of the amount of any new equity invested by this Indenture▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. LLC in connection with such transaction and (b) each such payment shall be approved by a majority of the disinterested members of the Board of Directors of the Company; and
(10) any transaction issuances of Equity Interests (other than Disqualified Stock) of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCompany.
Appears in 2 contracts
Sources: Indenture (Hhgregg, Inc.), Indenture (HHG Distributing, LLC)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, conduct any business or enter into or permit to exist conduct 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 its Affiliates the Company (each, any such transaction or series of related transactions being an “Affiliate Transaction”)) involving payments in excess of $25,000,000, other thanunless:
(a) the terms of such Affiliate Transactions described Transaction are not materially less favorable to the Company or that Restricted Subsidiary, as the case may be, taken as a whole, than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company or, if in the last paragraph good faith judgment of this Section 4.12; the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view (in each case, as determined in good faith by the Company), and
(b) if the Affiliate Transactions Transaction involves aggregate payments or value in excess of $50,000,000, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and in its good faith judgment determines that the Affiliate Transaction complies with clause (a) of this paragraph as evidenced by a resolution of the Board of Directors promptly delivered to the Trustee. Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the Company and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(b) any Restricted Payment permitted to be made pursuant to Section 4.05 or any Permitted Investment;
(c) any employment, consulting, service, severance, termination agreement, employee benefit plan, compensation arrangement, indemnification arrangement, or any similar arrangement entered into by the Company or a Restricted Subsidiary with a current or former director, officer or employee of the Company or a Restricted Subsidiary and payments related thereto, in each case in the ordinary course of business or that is otherwise customary; or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees of the Company or a Restricted Subsidiary approved by the Board of Directors of the Company;
(i) reimbursement of employee travel and lodging costs and other business expenses incurred in the ordinary course of business and (ii) loans and advances to employees made in the ordinary course of business in compliance with applicable laws;
(e) any issuance, transfer or sale of Capital Stock (other than Disqualified Stock) of the Company;
(f) any agreement as in effect on the Issue Date, or any amendment, modification, supplement, extension or renewal thereto (so long as such amendment, modification, supplement, extension or renewal is not materially adverse to the interests of the Holders of the Notes when taken as a whole as compared to the original Affiliate Transaction, as determined in good faith by the Company) or any transaction or payments contemplated thereby;
(g) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged, amalgamated or consolidated with or into the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the good faith determination of the Company, than the applicable agreement as in effect on the date of such acquisition, merger, amalgamation or consolidation;
(h) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the good faith determination of the Company, such transactions are on terms that are no not materially less favorable favorable, when taken as a whole, to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewview (in each case, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company);
(2i) transactions exclusively between or among in which the Company and or any of its Restricted Subsidiaries Subsidiary delivers to the Trustee a letter or exclusively between opinion from an Independent Financial Advisor stating that such transaction is fair to the Company or among such Restricted Subsidiaries, provided such transactions Subsidiary from a financial point of view or stating that the terms are not otherwise prohibited materially less favorable, when taken as a whole, than those that might reasonably have been obtained by any provision contained the Company or such Restricted Subsidiary in this Indenturea comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(3j) the Transactions and the payment of all fees and expenses related to the Transactions;
(k) any service, purchase, lease, supply or similar agreement entered into in effect the ordinary course of business or for legitimate business purposes (including pursuant to any joint venture agreement) between the Company or any Restricted Subsidiary and any Affiliate that is a customer, client, supplier, purchaser or seller of goods or services and any transactions with joint ventures for the purchase or sale of goods, equipment or services in the ordinary course of business so long as the Company determines in good faith that any such agreement or transaction is on the Issue Date as in effect on such date or as thereafter amended in a manner terms not materially less favorable to the Holders of Notes Company or such Restricted Subsidiary than those that could be obtained in the aggregatea comparable arms’-length transaction;
(4l) transactions between the Company and/or its Restricted pledges of equity interests of Unrestricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (am) transactions between entered into as part of a Permitted Receivables Financing on customary terms (as determined by the Company and/or its Restricted Subsidiaries, on Company’s Board of Directors); and
(n) intercompany transactions undertaken in good faith for the one hand, and Subsidiaries purpose of Mosaic that are not Affiliate Guarantors, on improving the other, in the ordinary course tax efficiency of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and not for the purpose of circumventing any Securitization Entity covenant set forth in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
provided that neither the Company nor any Restricted Subsidiary may make such intercompany transactions if such transaction would constitute a Restricted Payment (10) other than any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Restricted Payment permitted to be made pursuant to Section 4.12 will not apply after the Fall-Away Event4.05).
Appears in 1 contract
Sources: Indenture (Seadrill LTD)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $15.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million but no greater than $50.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries (or any entity that states becomes a Restricted Subsidiary as a result of such transaction);
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 4.07 (and any transaction that would constitute a Restricted Payment but for the exclusions from the definition thereof);
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such board has determined director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture and which is described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, then Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2015, June 30, 2015 or September 30, 2015 or the Company’s Current Reports on Form 8-K filed on February 19, 2015, February 20, 2015, April 23, 2015, May 15, 2015, May 21, 2015, July 7, 2015, July 9, 2015, August 27, 2015, September 24, 2015 or October 22, 2015, as such agreements may be amended, modified or supplemented from time to time; provided, however, that any amendment, modification or supplement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the date of this Indenture;
(9) any transaction complies with in which the foregoing provisions. If Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the first paragraph of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of the Company enters into an of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction that involves aggregate payments or other assets with a fair market value Person in excess its capacity as a holder of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees Indebtedness or consultants Capital Stock of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer Subsidiary of the CompanyCompany if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(212) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted with Unrestricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyPerson, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior any executive officer of the CompanyCompany involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(613) transactions entered into by a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, Person prior to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of time such Person becomes a Subsidiary or is merged or consolidated into the Company or any a Subsidiary (provided such transaction is not entered into in contemplation of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indentureevent); and
(1014) dividends and distributions to the Company and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) Unrestricted Subsidiary or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventJoint Venture.
Appears in 1 contract
Sources: Indenture (Linn Energy, LLC)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into or permit to exist any in one transaction or a series of related transactions transactions, involving aggregate payments or consideration in excess of $5.0 million, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, loan, advance or guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach of the foregoing, an “Affiliate Transaction”), other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would could reasonably be expected to have been obtained at that time in a comparable arm’s length transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each unaffiliated party;
(ii) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 10.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If , the Company or any Restricted Subsidiary delivers to the Trustee a resolution adopted by the majority of the disinterested members of the Board of Directors of the Company enters into an approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that involves such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 50.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain and deliver to the Trustee a favorable written opinion from of a nationally recognized investment banking, accounting or appraisal firm (an “Independent Financial Advisor as Advisor”) stating that the transaction is fair to the fairness of that Affiliate Transaction to Company or such Restricted Subsidiary, as the Holders of Notes case may be, from a financial point of view. The foregoing limitations do not limit, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do shall not apply to:
(1) Restricted Payments that are permitted pursuant to Section 4.7 and any Permitted Investments that are permitted by this Indenture and transactions permitted by, and complying with, Section 5.1;
(2) the payment (and any agreement, plan or arrangement relating thereto) of reasonable fees compensation and other benefits (including retirement, health, option, deferred compensation paid and other benefit plans) and indemnification and insurance arrangements to members of the Board of Directors of the Company or a Restricted Subsidiary;
(3) the payment (and indemnity provided on behalf any agreement, plan or arrangement relating thereto) of reasonable compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnification and insurance arrangements to officers, directors, employees or and consultants of the Company or any Restricted Subsidiary;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any transaction with an Affiliate in which the only consideration paid by the Company or any Restricted Subsidiary is Qualified Capital Interests of the Company or any Restricted Subsidiary or any issuance of Qualified Capital Interests by the Company or any Restricted Subsidiary;
(6) any agreement or arrangement (other than agreements or arrangements permitted by clause (10) of the second paragraph of this Section 4.11) as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) transactions in which the Company delivers to the Trustee a written opinion from an Independent Financial Advisor, accounting or appraisal firm to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries;
(8) any contribution of capital to the Company or any Restricted Subsidiary;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, on terms that (taken as a whole) are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than those that could reasonably be expected to be obtained in a comparable arm’s length transaction with an unaffiliated party; or
(10) payments by the Company or any Restricted Subsidiary made pursuant to management/consulting agreements in existence on the Issue Date that are described in the Offering Memorandum, and the performance of the obligations of the Company and any Restricted Subsidiary as required or permitted by the terms of such agreements; provided, however, that 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 (10) to the extent that the terms (taken as reasonably determined in good faith by the Company’s Board a whole) of Directors any such amendment or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions new agreement are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable disadvantageous to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventNotes.
Appears in 1 contract
Sources: Indenture (LiveWatch Security, LLC)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “"Affiliate Transaction”), other than") if such Affiliate Transaction or series of related Affiliate Transactions involves aggregate consideration in excess of $2.5 million and unless:
(ai) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(ii) the Company must approve each delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 10.0 million. This approval must be evidenced by , a board resolution that states that such board has determined that of the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary Board of Directors of the Company enters into set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this Section 4.07 and that involves such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company in good faith; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 20.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes such Affiliate Transaction from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to:4.07(a):
(1i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of any employment agreement entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith the ordinary course of business or approved by the Company’s Board of Directors of the Company in good faith;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(iii) payment of reasonable directors fees to Persons who are not employees of Holdings, the Company or its Subsidiaries and other reasonable fees, compensation, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with the officers, directors, consultants or employees of the Company and its Restricted Subsidiaries;
(iv) sales, grants, awards or issuances of Equity Interests (other than Disqualified Stock) that are approved by a senior officer majority of the disinterested members of the Board of Directors of the Company in good faith, including the exercise of options and warrants, to Affiliates, officers, directors or employees of the Company or any contribution to the common equity capital of the Company by Affiliates of the Company;
(2v) transactions exclusively between or among involving the Company and or any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors▇.▇. ▇▇▇▇▇▇ Securities Inc., Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas, General Electric Capital Corporation, JPMorgan Chase Bank, Citicorp North America, Inc., Canadian Imperial Bank of Commerce or Chase Lincoln First Commercial Corporation on the otherother hand, in connection with this offering, the ordinary course Merger and transactions related thereto, the Credit Agreement and any amendment, modification, supplement, extension, refinancing, replacement, work-out, restructuring and other transactions related thereto, or any management, financial advisory, financing, underwriting or placement services or any other investment banking, banking or similar services, which payments are approved by a majority of business and otherwise the disinterested members of the Board of Directors of the Company in compliance with the terms of this Indenturegood faith;
(5vi) (a) transactions between as long as the Company and/or its Restricted Subsidiariesis a member of a consolidated (or combined) group filing a consolidated (or combined) return of which Holdings is the parent, payments pursuant to the tax allocation agreement as in effect on the one handClosing Date (or as the same may be amended, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) modified or (7) of the second paragraph of Section 4.09; provided that in the case of replaced from time to time so long as any such transaction amendment, modification or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsreplacement, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms is no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Holders than the terms which reasonably would have been obtained from an unrelated party, contract or agreement as in each case, as is reasonably determined in good faith by effect on the Board of Directors or a senior officer Closing Date) to permit Holdings to pay taxes that are then due and owing and are attributable to the operations of the Company;
(6vii) a Phosphates Combination TransactionRestricted Payments and Permitted Investments (other than Permitted Investments contemplated by clause (15) of the definition of "Permitted Investments") that are permitted by the provisions of Section 4.04;
(7viii) the issuance transactions effected as part of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent Qualified Receivables Transaction permitted by under Section 4.084.03;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9ix) transactions between any of the existence or performance by the Company or any of its Restricted Subsidiaries of the provisions of the Merger Agreement, the Credit Agreement, the Purchase Agreement, the Registration Agreement, the members' agreement and any Securitization Entity other agreements (other than the management and fee agreements, which are addressed in clause (x) below) described under the caption "Management" or "Certain relationships and related transactions" in the Offering Memorandum or any amendment thereto or replacement agreement therefor (including in connection with a Qualified Securitization Transactionthe Aurora Acquisition) or any transaction contemplated thereby so long as such amendment or replacement is not more disadvantageous to the Holders of the Securities in any material respect than the original agreement as in effect on the Closing Date;
(x) so long as no Default has occurred and is continuing or would be caused thereby, the existence or performance by the Company or any of its Restricted Subsidiaries of the provisions of the management and fee agreements described under the caption "Certain relationships and related transactions" in each case, provided that the Offering Memorandum or any amendment thereto or replacement agreement therefor (including in connection with the Aurora Acquisition) or any transaction contemplated thereby so long as such transactions are amendment or replacement is not otherwise prohibited by this Indenturemore disadvantageous to the Holders of the Securities in any material respect than the original agreement as in effect on the Closing Date; and
(10xi) any transaction agreement (other than with any Permitted Holder) as in effect as of the type set forth Issue Date or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of the Securities in clause (7any material respect) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventany transaction contemplated thereby.
Appears in 1 contract
Sources: Indenture (Sea Coast Foods, Inc.)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $5.0 million (each, an “Affiliate Transaction”), other thanunless:
(ai) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms terms, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and an unrelated Person. The Board of Directors or a senior officer of when such transaction is taken in its entirety; and
(ii) the Company must approve each delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 35.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officers and directors of Affiliates of the Company);
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that states is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with (a) the terms of agreements or arrangements in effect on the Issue Date, including the Services Agreement, the Partnership Agreement and the other agreements governing the Transactions, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such board has determined agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the transaction complies Affiliate is treated no more favorably than other holders of such Indebtedness;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the foregoing provisions. If Partnership Agreement as it may be amended, modified or supplemented from time to time, so long as any such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the Company enters into an Affiliate Transaction that involves aggregate payments benefit of lenders or other assets with a fair market value creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” so long as any such transaction described in this clause (b), if involving aggregate consideration in excess of $30.0 50.0 million, then prior to has been approved by a majority of the consummation disinterested members of that Affiliate Transactionthe Board of Directors of the Company or the Conflicts Committee of the Company;
(x) transactions between the Company and any Person, a director of which is also a director of the General Partner or, if applicable, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewCompany, and deliver that opinion such common director is the sole cause for such other Person to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants be deemed an Affiliate of the Company or any of its Restricted Subsidiaries Subsidiaries; provided, however, that such director abstains from voting as reasonably determined in good faith by the Company’s Board of Directors or a senior officer director of the CompanyGeneral Partner or, if applicable, the Company on any matter involving such other Person;
(2xi) transactions exclusively between or among any transaction in which the Company and or any of its Restricted Subsidiaries Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or exclusively between or among such Restricted Subsidiaries, provided Subsidiary from a financial point of view or that such transactions are not otherwise prohibited by any provision contained in this Indenture;transaction meets the requirements of clause (i) of Section 4.11(a); and
(3xii) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariescase of contracts for supplies, on the one handraw materials, and the Affiliate Guarantorsinventory or other goods or services or activities reasonably related or ancillary thereto, on the otheror other operational contracts, any such contracts are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries Restricted Subsidiary and unrelated third parties, or if neither the Company nor any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided then the terms are no less favorable than those that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallwould reasonably be expected to be available from third parties on an arm’s-Away Eventlength basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would could reasonably be expected to have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors Person or a senior officer of is otherwise fair to the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any and its Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes Subsidiaries from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee. The restrictions described Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with the preceding paragraphs clause (1) of this Section 4.12 do 5.11 and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $100.0 million, a resolution of the Board of Directors of the General Partner set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with the preceding clause (1) of this Section 5.11 and has been approved by a majority of the disinterested members of the Board of Directors. The following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 5.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment agreement or arrangement, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indentureany payments or awards pursuant thereto;
(5) (a2) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries or among any of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in such Person;
(4) transactions permitted by the terms of (a) the Partnership Agreement with respect to accounting, taken treasury, information technology, insurance and other corporate services, general overhead and other administrative matters and expense reimbursements and (b) any other agreements existing on the date of this Supplemental Indenture, in each case as such agreements are in effect on the date of this Supplemental Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less favorable to the Company than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company, a Restricted Subsidiary of the Company or the General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Restricted Payments or Permitted Investments that are permitted by Section 5.07;
(8) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a wholedirector of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(9) in the case of contracts for the provision of gathering, treating or compression services with respect to Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms no substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties or otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as Subsidiaries than those that would be available in a whole, than the terms which reasonably would have been obtained from transaction with an unrelated third party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Sources: First Supplemental Indenture (Access Midstream Partners Lp)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its Restricted Subsidiaries properties or assets to, directly or indirectlypurchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate, other than the Company or a Restricted Subsidiary (each of its Affiliates (eachthe foregoing transactions, an “"Affiliate Transaction”"), other thanunless:
(a) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The ; and
(b) the Company delivers to the Trustee:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $7.5 million, a determination by the Board of Directors or a senior officer of the Company must approve set forth in a Board Resolution and an Officers' Certificate certifying that each such Affiliate Transaction complies with clause (a) above and that involves each such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into , an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness to the Company of that the financial terms of such Affiliate Transaction to the Holders of Notes or series or related Affiliate Transactions from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing. This Section 10.13 shall not limit, or be applicable to any agreement in effect on the Issue Date, and deliver that opinion any amendments, extensions or renewals of any such agreement, so long as any such amendment, extension or renewal is not materially more disadvantageous, taken as a whole, to the TrusteeCompany or to any Restricted Subsidiary as the original agreement in effect on the Issue Date. The restrictions described in In addition, the preceding paragraphs of this Section 4.12 do following items will not apply tobe deemed to be Affiliate Transactions:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment, directors, employees service or consultants of termination agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns Capital Stock in, or controls, such Person;
(4) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors and employees of the Company or 111 any Restricted Subsidiary of the Company, as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries sales or issuances of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course Qualified Capital Stock to Affiliates or employees of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;Subsidiaries at Fair Market Value; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted Payments that are not prohibited by Section 4.08;
(8) 10.10 and Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventInvestments.
Appears in 1 contract
Sources: Indenture (Rural Cellular Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, each an “Affiliate Transaction”), other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted such Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(ii) the Company must approve each delivers to the Holders:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced 500,000, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) of this Section 6.13(a) and that such Affiliate Transaction has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 1.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any such Subsidiary of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or such Affiliate Transaction from a senior officer of the Company;financial
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the type set forth in clause (6) or (7) of the second paragraph provisions of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;6.13(a):
(6i) a Phosphates Combination Transaction;
(7) the issuance of a guarantee any employment agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection the ordinary course of business;
(ii) transactions between or among the Company and/or its Subsidiaries;
(iii) transactions with a Qualified Securitization TransactionPerson that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in each case, provided that such transactions Person;
(iv) payment of reasonable directors’ fees to Persons who are not otherwise prohibited by this IndentureAffiliates of the Company;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(vi) the payment to Great Hill on the Closing Date of the consulting fee set forth on Schedule 2.7, which shall be no more than $1,225,000; and
(10vii) any transaction of the type set forth in clause Restricted Payments (7other than Permitted Investments) or (8) of the definition of “Asset Sale”. This that do not violate Section 4.12 will not apply after the Fall-Away Event6.4.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Borrower (each, each an “Affiliate Transaction”), other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Borrower or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Borrower or the relevant Restricted such Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(ii) the Company must approve each Borrower delivers to the Agents:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced 500,000, a resolution of the Borrower’s Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) of this Section 7.13(a) and that such Affiliate Transaction has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 1.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Borrower or such Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to:7.13(a):
(1i) reasonable fees any employment agreement, employee benefit plan, officer and compensation paid to and indemnity provided on behalf of officers, directors, employees director indemnification agreement or consultants of any similar arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and ;
(bii) transactions between or among the Borrower and/or its Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the type set forth Borrower solely because the Borrower owns, directly or through a Subsidiary, an Equity Interest in clause such Person;
(6iv) or payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Borrower;
(7v) any issuance of Equity Interests (other than Disqualified Stock) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions Borrower to Affiliates of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the CompanyBorrower;
(6vi) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with (other than Permitted Investments) that do not violate Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event7.4.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer, exchange or otherwise dispose of any of their properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction or series of related transactions transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any of its Affiliates (each, an “"Affiliate Transaction”"), other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or on the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Person (as determined by the Company's Board of Directors or and evidenced by a senior officer resolution of its Board of Directors); and
(2) the Company must approve each delivers to the Administrative Agent:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 10.0 million. This approval must be evidenced by , a board resolution that states of its Board of Directors set forth in an Officers' Certificate certifying that such board has determined that the transaction Affiliate Transaction complies with this Section 5.13 and that such Affiliate Transaction has been approved by the foregoing provisions. If the Company or any Restricted Subsidiary disinterested outside members of the Company enters into an Company's Board of Directors; and
(b) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 25.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes Company or its applicable Restricted Subsidiary from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs of this Section 4.12 do not apply toprior paragraph:
(1) reasonable fees and compensation paid any (a) employment or indemnification arrangements or (b) transactions relating to and indemnity provided on behalf of officersbenefit plans, directorsin each case with any employee, employees consultant or consultants director of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith that is entered into by the Company’s Board of Directors Company or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance consistent with past practice of the terms of this IndentureCompany or such Restricted Subsidiary;
(5) (a2) transactions between or among the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(63) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect loans or advances to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any employees of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection the ordinary course of business;
(4) transactions with a Qualified Securitization Transaction, Person that is the Company's Affiliate solely because the Company owns an Equity Interest in each case, provided that such transactions are not otherwise prohibited by this Indenture; andPerson;
(105) any transaction payment of reasonable directors fees;
(6) sales of Equity Interests (other than Disqualified Stock) to the type set forth in clause Company's Affiliates;
(7) or Restricted Payments that are permitted under Section 5.9;
(8) any payments or other transactions pursuant to any tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.a consolidated group for tax purposes;
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “"Affiliate Transaction”"), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced , a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 25.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable written opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes such Affiliate Transaction from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and any employment or severance agreement or other employee compensation paid to and indemnity provided on behalf of officersagreement, directorsarrangement or plan, employees or consultants of any amendment thereto, entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a senior officer Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) payment of reasonable directors' fees and other benefits to persons who are not otherwise Affiliates of the Company;
(25) transactions exclusively between or among provision of officers' and directors' indemnification and insurance in the Company and any ordinary course of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited business to the extent permitted by any provision contained in this Indenturelaw;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(46) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, with any Income Fund Partnership in the ordinary course of business and otherwise in compliance consistent with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transactionpast practices;
(7) the issuance sales of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect Equity Interests (other than Disqualified Stock) to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any Affiliates of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureCompany; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Restricted Payments that are permitted by Section 4.12 will not apply after the Fall-Away Event4.07 hereof.
Appears in 1 contract
Sources: First Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate (each of its Affiliates (eachthe foregoing, an “"Affiliate Transaction”"), other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant such Restricted Subsidiary than those terms that would might reasonably have been obtained at that time in a comparable arm's-length transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each ;
(ii) if such Affiliate Transaction that or series of related Affiliate Transactions involves aggregate payments or other assets with a fair market value consideration in excess of $15.0 5.0 million. This approval must be , either (x) the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (i) of this paragraph as evidenced by a board resolution that states that such board has determined that of the transaction Board of Directors promptly delivered to the Trustee or (y) if there are no disinterested members of the Board of Directors, the Company complies with the foregoing provisions. If the Company or any Restricted Subsidiary fairness opinion requirement of the Company enters into an this Section 4.11(a)(iii) with respect to such Affiliate Transaction; and
(iii) if such Affiliate Transaction that or series of related Affiliate Transactions involves aggregate payments or other assets with a fair market value consideration in excess of $30.0 10.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable delivers to the Trustee an opinion from an Independent Financial Advisor as to the fairness to the Company or such Restricted Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to:4.11(a):
(1i) any employment agreement, employee benefit plan or stock option plan entered into by the Company or any of its Restricted Subsidiaries or the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant thereto in the ordinary course of business that has been approved by a majority of the disinterested members of the Board of Directors;
(ii) transactions between or among the Company and its Restricted Subsidiaries;
(iii) Restricted Payments that are permitted by the provisions of Section 4.07 hereof;
(iv) reasonable fees and compensation paid customary directors' fees, indemnification and similar arrangements and payments thereunder by the Company or any of its Restricted Subsidiaries;
(v) loans or advances to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, provided that the aggregate amount of all such loans and advances at any time outstanding shall not exceed $2.0 million;
(bvi) transactions any agreement as in effect as of the type set forth in clause date of this Indenture or any amendment thereto (6) or (7) of the second paragraph of Section 4.09; provided that in the case of so long as any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsamendment, taken as a whole, are fair is not disadvantageous to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer Holders of the CompanyNotes in any material respect) or any transaction contemplated thereby;
(6) a Phosphates Combination Transaction;
(7vii) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any Capital Stock or other Equity Interests of the Company (other than Disqualified Stock) or any the making of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indentureother capital contributions to the Company; and
(10viii) any transaction payment of $2.0 million to ▇▇▇▇▇ ▇. ▇▇▇▇ and the type set forth in clause (7) or (8) payment of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event$2.7 million to ABRY Partners LLC.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million but less than or equal to $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and has been approved by the resolution of a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any employment, severance or consulting agreement or other compensation agreement, arrangement or plan or any amendment thereto, any issuance of Capital Stock (other than Disqualified Stock) or other payments, awards or grants in cash, Capital Stock (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment, severance or consulting agreements and other compensation paid agreements, arrangements and plans, options to and indemnity provided on behalf purchase Capital Stock (other than Disqualified Stock) of officersthe Company, directorsrestricted stock plans, employees long-term incentive plans, stock appreciation rights plans, participation plans or consultants similar employee benefits plans, in each case arising in the ordinary course of business of the Company or any of its Restricted Subsidiaries as reasonably determined Subsidiaries;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in good faith by the Company’s Board such Person, including, without limitation, any transaction with a joint venture or similar entity (other than an Unrestricted Subsidiary);
(4) payment of Directors or a senior officer reasonable directors’ fees, consulting fees and other benefits to Persons who are not otherwise Affiliates of the Company;
(25) transactions exclusively between or among provision of officers’ and directors’ indemnification and insurance in the Company and any ordinary course of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited business to the extent permitted by any provision contained in this Indenturelaw;
(36) any agreement in effect on sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateCompany;
(47) transactions between Permitted Investments and Restricted Payments that are permitted by Section 4.07 hereof;
(8) any transaction in which the Company and/or or its Restricted Subsidiaries, on as the one handcase may be, and deliver to the Affiliate GuarantorsTrustee a letter from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the otherCompany or its Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the first paragraph of this Section 4.11;
(9) transactions with Unrestricted Subsidiaries, Affiliates, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms ) materially no less favorable to the Company and or its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyPerson, in each case, as is reasonably determined in the good faith by the Board of Directors or a senior officer determination of the Company;’s Board of Directors, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(910) transactions between any of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with Person, a Qualified Securitization Transactiondirector of which is also a director of the Company or any direct or indirect parent of the Company; provided, in each casehowever, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction director abstains from voting as a director of the type set forth in clause (7) Company or (8) of such direct or indirect parent, as the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventcase may be, on any matter involving such other Person.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates involving aggregate payment or consideration in excess of $30.0 million (each, an “Affiliate Transaction”), other than
: (ax) Affiliate Transactions described in the last paragraph of this permitted under Section 4.12412(b); and
and (by) Affiliate Transactions on terms that taken as a whole are no not materially less favorable than those that would have reasonably been expected 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 or, if in the good faith judgment of the board of directors of the Company no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is fair to the Company or the relevant such Restricted Subsidiary than those terms that would reasonably have been obtained at that time in from a comparable transaction by the Company financial point of view. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or the relevant Restricted Subsidiary and an unrelated Person. The Board part of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves common plan) involving aggregate payments or other assets property with a fair market value Fair Market Value in excess of $15.0 million. This 60.0 million shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, such approval must to be evidenced by a board resolution that states Board Resolution stating that such board Board of Directors has determined that the such transaction complies with the foregoing provisions. If The Company will deliver to the Trustee an Officer’s Certificate certifying such Board Resolution.
(b) The restrictions of Section 412(a) shall not apply to:
(i) employment, consulting and compensation arrangements and agreements of the Company or any Restricted Subsidiary consistent with past practice or approved by a majority of the disinterested members of the Board of Directors of the Company enters into an Affiliate Transaction that involves aggregate payments (or other assets with a fair market value in excess committee comprised of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:disinterested directors);
(1ii) reasonable fees and compensation paid to to, and indemnity provided on behalf of of, current or former officers, directors, employees employees, consultants or consultants agents of the Company or any of its Restricted Subsidiaries Subsidiary as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Companymanagement;
(2iii) transactions exclusively between or among the Company and any of its the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date Subsidiaries or an entity that becomes a Restricted Subsidiary as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms result of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, transaction; provided that such transactions are not otherwise prohibited by this Indenture;
(iv) Restricted Payments, Permitted Investments or Permitted Liens permitted by this Indenture;
(v) transactions pursuant to agreements or arrangements in effect on the Issue Date or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the holders of the Notes than the agreement or arrangement in existence on the Issue Date;
(vi) transactions with respect to which the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor;
(vii) (i) transactions undertaken and agreements entered into in connection with a Permitted Separation Transactions (and the performance of any obligations under such agreements), including transactions or agreements between the Company and/or its Restricted Subsidiaries (or the RemainCo Parent and/or its Restricted Subsidiaries), on the one hand, and the SeparationCo Parent and/or its Subsidiaries, on the other hand, in contemplation of, or in connection with or as a result of a Permitted Separation Transaction and (ii) any renewal, amendment or replacement of the agreements referred to the preceding clause (i) (including the performance of any obligations thereunder) and any transaction undertaken and agreements entered into (and the performance of any obligations thereunder) between the Company and/or its Restricted Subsidiaries (or the RemainCo Parent and/or its Restricted Subsidiaries), on the one hand, and the SeparationCo Parent and/or its Subsidiaries, on the other hand, after the consummation of a Permitted Separation Transaction provided that, in each case pursuant to this clause (ii), the Company determines in good faith that such renewal, amendment, replacement or new transaction or agreement is fair to the Company and its Restricted Subsidiaries in all material respects;
(viii) the sale, issuance or transfer of Equity Interests (other than Disqualified Capital Stock or Preferred Stock) of the Company or a Restricted Subsidiary to any person and the granting and performance of customary registration rights;
(a) payments or loans (or cancellation of loans) or advances to employees, officers, directors, members of management, consultants or independent contractors (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Company or any of its Restricted Subsidiaries and collective bargaining agreements, employment agreements, severance arrangements, compensatory (including profit sharing) arrangements, stock option plans, benefit plan, health, disability or similar insurance plan and other similar arrangements with such employees, officers, directors, managers, members of management, consultants or independent contractors (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) in each case, for bona fide business purposes and (b) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with future, present or former employees, officers, directors, members of management, consultants or independent contractors approved by the Board of Directors (or equivalent governing body) of the Company or any Restricted Subsidiary in good faith;
(x) any transaction effected as part of a Permitted Receivables Financing;
(xi) any transaction between the Company or any Restricted Subsidiary and any Person, a director of which is also a director or officer of the Company or any Restricted Subsidiary; provided, however, that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as the case may be, on any matter involving such other Person;
(xii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Company in an Officer’s Certificate) for the purposes of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture;
(xiii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xiv) (i) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and (ii) any payments to or from, and transactions with any joint venture or any variable interest entity in the ordinary course of business and consistent with past practice (including, without limitation, any cash management services related thereto);
(xv) licenses of, or other grants of rights to use, intellectual property granted by the Company or any Restricted Subsidiary in the ordinary course of business or consistent with industry practice;
(xvi) contemporaneous purchases and/or sales by (a) the Company or any of its Restricted Subsidiaries and (b) an Affiliate, of assets, Capital Stock, bonds, notes, debentures or other debt securities, and bank loans, participations or similar obligations at substantially the same price;
(xvii) investments by Affiliates in Indebtedness of the Company or any of its Subsidiaries, so long as non-Affiliates were also offered the opportunity to invest in such Indebtedness, and transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, to the extent such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally; and
(10xviii) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person entered into in the ordinary course of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventbusiness.
Appears in 1 contract
Sources: Indenture (Tenneco Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company and any Restricted Subsidiary (each, an “Affiliate Transaction”)) involving, other thanwith respect to any such transaction or series of related transactions, payments or consideration in excess of $1.0 million, unless:
(1) the Affiliate Transaction is on terms that are either (a) no less favorable to the Company or the relevant Restricted Subsidiary than those that could have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate Transactions described of the Company and any Restricted Subsidiary or (b) if in the last paragraph good faith judgment of this Section 4.12the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(b2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions on involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an opinion issued to the Board of Directors of the Company by an accounting, appraisal or investment banking firm of international standing or generally recognized in the shipping or offshore drilling industries as qualified to perform the tasks for which such firm has been engaged as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view or that the terms that of such Affiliate Transaction are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably could have been obtained at that time in a comparable arm’s-length transaction by the Company or the relevant such Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company must approve each and any Restricted Subsidiary. For the avoidance of doubt, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value in excess consideration of $15.0 million. This approval must 25.0 million or less, the determination that such Affiliate Transaction or series of Affiliate Transactions complies with this covenant may be evidenced made by a board resolution that states that such board has determined that Financial Officer of the transaction complies with Company.
(b) The following items will not be deemed to be Affiliate Transactions, as applicable, and, therefore, will not be subject to the foregoing provisions. If provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, compensation plan or arrangement, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) payment of reasonable directors’ fees to directors of the Company or any Restricted Subsidiary;
(3) transactions solely between or among the Company and/or any of its Restricted Subsidiaries;
(4) the issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to, or receipt of capital contributions from, Affiliates of the Company;
(5) loans or advances to employees of the Company or any Restricted Subsidiary in the ordinary course of business not to exceed $7.5 million in the aggregate at any one time outstanding;
(6) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, solely because the Company must obtain owns, directly or through a favorable opinion from Restricted Subsidiary, an Independent Financial Advisor as to the fairness of Equity Interest in, or controls, such Person;
(7) Permitted Investments and Restricted Payments that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:violate the provisions of Section 4.07;
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of 8) transactions between the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by and any Person that would not otherwise constitute an Affiliate Transaction except for the Company’s Board fact that one director of Directors or such other Person is also a senior officer director of the Company;Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(39) any agreement as in effect on the Issue Date or any amendments, renewals or extensions of any such agreement (so long as in effect on such date amendments, renewals or as thereafter amended in a manner extensions are not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventHolders).
Appears in 1 contract
Sources: Indenture (Pacific Drilling S.A.)
Limitation on Transactions with Affiliates. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Parent or any Affiliate of any Restricted Subsidiary (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Parent, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Parent delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of this Section 4.12 do not apply tothe prior paragraph:
(1) reasonable fees and compensation paid to and indemnity provided on behalf any transaction or series of officersrelated transactions involving aggregate consideration of less than $10.0 million;
(2) any employment, directorsconsulting or similar agreement or arrangement, employees employee benefit plan, equity award, equity option or consultants of equity appreciation agreement or plan entered into by the Company Parent or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors business and payments, awards, grants or a senior officer issuances of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenturesecurities made pursuant thereto;
(3) transactions between or among any of the Parent and/or its Restricted Subsidiaries;
(4) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because Parent owns, directly or indirectly, an Equity Interest, or controls, in such Person;
(5) transactions effected in accordance with the terms of agreements that are identified or incorporated by reference in the offering memorandum, in each case as such agreements are in effect on the Issue Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is, in the good faith judgment of a responsible Officer of the General Partner, no less advantageous to the Parent in any material respect than the agreement so amended or replaced;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Parent or a Restricted Subsidiary or Affiliate of the Parent, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Parent;
(8) Restricted Payments that do not violate the provisions of this Indenture described above in Section 4.07 or Permitted Investments;
(9) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as in effect on it may be amended, provided that any such date or as thereafter amended in a manner amendment is not materially less favorable to the Holders of Notes Parent in any material respect than the aggregateagreement prior to such amendment;
(410) transactions between the Company and/or Parent or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Parent or any direct or indirect parent company of the Parent, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Parent or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Parent or any direct or indirect parent company of the Parent, as the case may be, on any transaction with such other Person;
(11) (a) guarantees by the one handParent or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Parent or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;
(12) payments to an Affiliate Guarantors, in respect of the Notes or the Notes Guarantees or any other Indebtedness of the Parent or any Restricted Subsidiary on the othersame basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;
(13) payment of loans or advances to employees not to exceed $5.0 million in the aggregate at any one time outstanding;
(14) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Parent or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Parent or such Restricted Subsidiary;
(15) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this IndentureIndenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to the Parent and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated person, in the good faith determination of the Parent’s Board of Directors or any Officer of the Parent involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(516) (a) transactions between leases entered into by the Company and/or Parent or any of its Restricted Subsidiaries, on the one handas lessor, and Subsidiaries an Unrestricted Subsidiary or Joint Venture of Mosaic the Parent or such Restricted Subsidiary, as lessee, with respect to a pipeline or similar asset operated by such Unrestricted Subsidiary or Joint Venture; provided that the Remaining Present Value of any such leases shall not exceed $30.0 million in the aggregate; and
(17) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are not Affiliate Guarantors, on the other, entered into in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are business on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any Parent of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantorand third parties, to or if neither the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company Parent or any of its Subsidiaries and any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided that such transactions then the terms are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallno less favorable than those available from third parties on an arm’s-Away Eventlength basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates Holdings (each, an “Affiliate Transaction”), other thanunless:
(a) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not less favorable to the Company Holdings or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person or, if in the Company good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to Holdings or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(b) Holdings delivers to the TrusteePayee:
(i) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $10,000,000, a resolution of the Board of Directors of Holdings set forth in a certificate of a Financial Officer of Holdings certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 8.05 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of Holdings; and
(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $20,000,000, an opinion as to the fairness to Holdings or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to8.05:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or cash or equity settled equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement, consulting agreement or other compensation plan or arrangement entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business or which is customary in the Oil and compensation paid Gas Business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of Holdings and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Holdings) that is an Affiliate of Holdings solely because Holdings owns, directly or indirectly, an Equity HN\1118344.20 Interest in, or otherwise controls, such Person or has nominated or appointed a person to the Board of Directors of that Person;
(4) customary compensation, indemnification and indemnity provided on behalf of other benefits made available to officers, directors, employees or consultants of the Company Holdings or a Restricted Subsidiary of Holdings, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) issuances of Equity Interests (other than Disqualified Stock) of Holdings to, or receipt of capital contributions from, Affiliates of Holdings and any dividend or distribution payable in Equity Interests (other than Disqualified Stock) of Holdings;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 8.01;
(7) transactions between Holdings or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of Holdings or such Restricted Subsidiary, as reasonably determined in good faith by the Company’s Board applicable; provided that such director abstains from voting as a director of Directors Holdings or a senior officer of the Companysuch Restricted Subsidiary, as applicable, on any matter involving such other Person;
(2) transactions exclusively between 8) the existence of, and the performance of obligations of Holdings or among the Company and any of its Restricted Subsidiaries under the terms of, any written agreement to which Holdings or exclusively between any of its Restricted Subsidiaries is a party on the date of this Agreement, as such agreements may be amended, modified, supplemented or among such Restricted Subsidiariesreplaced from time to time; provided, provided such transactions however, that any amendment, modification, supplement or replacement entered into after the date of this Agreement will be permitted to the extent that its terms are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement materially more disadvantageous, taken as a whole, to the Payee than the terms of the agreements in effect on the Issue Date date of this Agreement (as in effect on conclusively evidenced by a Board Resolution of Holdings or such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateSubsidiary);
(49) transactions between the Company and/or any transaction in which Holdings or any of its Restricted Subsidiaries, on as the one handcase may be, and delivers to the Affiliate GuarantorsPayee an opinion from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view or that such transaction meets the other, requirements of clause (1) of the preceding paragraph of this Section 8.05;
(10) (a) guarantees by Holdings or any of its Restricted Subsidiaries of performance of obligations of Holdings’ Unrestricted Subsidiaries in the ordinary course of business or which are customary in the Oil and Gas Business and (b) pledges by Holdings or any Restricted Subsidiary of Holdings of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Holdings’ Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of Holdings or any Restricted Subsidiary of Holdings if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of Holdings or such Restricted Subsidiary; HN\1118344.20
(12) transactions with joint venture partners, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business or which are customary in the Oil and Gas Business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Agreement similar to those contained in similar contracts entered into by Holdings or any Restricted SubsidiariesSubsidiary and unrelated third parties, on the one handor if neither Holdings nor any Restricted Subsidiary has entered into a similar contract with an unrelated third party, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherwhich are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair not materially less favorable to the Company Holdings and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated third party, in each case, as is reasonably determined in the good faith by the determination of Holdings’ Board of Directors or a senior any executive officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries Holdings involved in or otherwise familiar with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturetransaction; and
(1013) dividends and distributions to Holdings and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventUnrestricted Subsidiary.
Appears in 1 contract
Sources: Lc Procurement Agreement (Endeavour International Corp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, enter into into, renew or permit to exist extend any transaction or series arrangement (including, without limitation, the purchase, sale, lease or exchange of related transactions withproperty or assets, or for the benefit of, rendering of any service) with any Affiliate of its Affiliates the Company or any Restricted Subsidiary (each, an a “Affiliate Related Party Transaction”), other than
(a) Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on except upon fair and reasonable terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been could be obtained at that time in a comparable arm’s-length transaction by the Company or the relevant Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company must approve each Affiliate Company.
(b) Any Related Party Transaction that involves or series of Related Party Transactions with an aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval 25,000,000 must first be evidenced approved by a board resolution that states that such board has determined that majority of the Board of Directors who are disinterested in the subject matter of the transaction complies pursuant to a Board Resolution. Prior to entering into any Related Party Transaction or series of Related Party Transactions with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction50,000,000, the Company must in addition obtain a favorable written opinion from an Independent Financial Advisor a nationally recognized investment banking firm as to the fairness of that Affiliate Transaction the transaction to the Holders of Notes Company and its Restricted Subsidiaries from a financial point of view. Notwithstanding the foregoing, and deliver that opinion to the Trustee. extent that any borrowings or commitments under the Senior Credit Facility (as in effect on the Issue Date) remain outstanding, this paragraph (b) will not be required to be complied with in connection with any applicable Related Party Transaction.
(c) The restrictions described in the preceding foregoing paragraphs of this Section 4.12 do not apply to:
(1) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the Company;
(2) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company;
(3) any Restricted Payments under Section 4.07 if permitted by that covenant, or any Permitted Investment;
(4) transactions or payments pursuant to any employee, officer or director compensation or benefit plans or arrangements entered into in the ordinary course of business;
(5) transactions pursuant to any contract or agreement in effect on the date of the Indenture, as amended, modified or replaced from time to time so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Company and compensation its Restricted Subsidiaries than those in effect on the date of the Indenture;
(6) the payment of reasonable and customary fees paid to to, and indemnity indemnities provided on behalf of for the benefit of, current or former officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by Equity Interests (other than Disqualified Stock) of the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantordirector, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any officer, employee or consultant of the Company or any of its Subsidiaries and any Securitization Entity Restricted Subsidiaries;
(8) sales of accounts receivable, or participations therein, in connection with a Qualified Securitization Transactionany Permitted Receivables Financing;
(9) payments or loans (or cancellation of loans) to employees or consultants of the Company or any of its Restricted Subsidiaries and employment agreements, stock option plans and other similar arrangements with such employees or consultants which, in each case, provided that such transactions are not otherwise prohibited approved by this Indenture; andthe Company in good faith;
(10) any transaction with a Restricted Subsidiary or joint venture or similar entity which would constitute a Related Party Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(11) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) entered into with any Person that immediately prior to entering into such agreement or agreements was not an Affiliate of the type set forth Company or any Restricted Subsidiary; and
(12) transactions in clause (7) which the Company or (8) any of its Restricted Subsidiaries, as the definition case may be, delivers to the Trustee a letter from a nationally recognized investment banking firm stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of “Asset Sale”. This Section 4.12 will view or stating that the terms are not apply after materially less favorable to the Fall-Away EventCompany or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s length basis.
Appears in 1 contract
Sources: Indenture (Seagate Technology)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions with, or for the benefit of, with any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) or extend, other than
(a) renew, waive or otherwise modify the terms of any Affiliate Transactions described in Transaction entered into prior to the last paragraph Issue Date unless the terms of this Section 4.12; and
(b) such Affiliate Transactions on terms that Transaction are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably have been which could be obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary and case may be, on an unrelated Personarm’s-length basis with a Person who is not an Affiliate. The Board of Directors or a senior officer of the Company must approve each In any Affiliate Transaction that involves aggregate payments involving an amount or other assets with having a fair market value in excess of $15.0 5 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable Board Resolution approved by a majority of the disinterested members of the Board of Directors of the Company approving such Affiliate Transaction and deliver to the Trustee such Board Resolution and an Officers’ Certificate certifying that such Affiliate Transaction complies with this provision. In any Affiliate Transaction with a value in excess of $10 million, the Company must obtain a written opinion from an Independent Financial Advisor as to the fairness to the Company or such Restricted Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion view or as to the TrusteeAffiliate Transaction being no less favorable to the Company or such Restricted Subsidiary than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who is not an Affiliate, in each case issued by an accounting, appraisal or investment banking firm of nationally recognized standing. The restrictions described in the preceding paragraphs of this Section 4.12 do foregoing provisions will not apply to:
(1i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants any Investment (excluding all Permitted Investments other than the Permitted Investment under clause (viii) of the Company definition thereof) or any of its other Restricted Subsidiaries as reasonably determined Payment, in good faith by the Company’s Board of Directors or a senior officer of the Companyeach case permitted to be made pursuant to Section 4.10;
(2ii) transactions exclusively any transaction between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3iii) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable payment of reasonable and customary fees to the Holders directors of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course who are not employees of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its and any employment and consulting agreements entered into by the Company or any Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, Subsidiary with their executives or consultants in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6iv) any transaction with a Phosphates Combination Transaction;
(7) the issuance of a guarantee by joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company and/or any of its or a Restricted Subsidiaries with respect to any Indebtedness of any Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided, however, that no Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity other than the Company or a Restricted Subsidiary shall have a beneficial interest in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturejoint venture or similar entity; andor
(10v) any transaction employment, indemnification, severance or other agreement or transactions relating to compensation, employee benefits or benefit plans with any employee, consultant or director of the type set forth Company or a Restricted Subsidiary that is entered into by the Company or any of its Restricted Subsidiaries in clause (7) or (8) the ordinary course of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventbusiness.
Appears in 1 contract
Sources: Indenture (McClatchy Co)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its Restricted Subsidiaries properties or assets to, directly or indirectlypurchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate, other than the Company or a Restricted Subsidiary (each of its Affiliates (eachthe foregoing transactions, an “"Affiliate Transaction”"), other thanunless:
(a) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The ; and
(b) the Company delivers to the Trustee:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $7.5 million, a determination by the Board of Directors or a senior officer of the Company must approve set forth in a Board Resolution and an Officers' Certificate certifying that each such Affiliate Transaction complies with clause (a) above and that involves each such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million, an opinion as to the fairness to the Company of the financial terms of such Affiliate Transaction or series or related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. This approval must Section 10.13 shall not limit, or be evidenced applicable to any agreement in effect on the Issue Date, and any amendments, extensions or renewals of any such agreement, so long as any such amendment, extension or renewal is not materially more disadvantageous, taken as a whole, to the Company or to any Restricted Subsidiary as the original agreement in effect on the Issue Date. In addition, the following items will not be deemed to be Affiliate Transactions:
(1) any employment, service or termination agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a board resolution Person that states that is an Affiliate of the Company solely because the Company owns Capital Stock in, or controls, such board has determined that the transaction complies with the foregoing provisions. If Person;
(4) reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors and employees of the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 millionCompany, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries sales or issuances of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course Qualified Capital Stock to Affiliates or employees of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;Subsidiaries at Fair Market Value; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted Payments that are not prohibited by Section 4.08;
(8) 10.10 and Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventInvestments.
Appears in 1 contract
Sources: Indenture (Rural Cellular Corp)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any in one transaction or a series of related transactions transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of its Affiliates (eachthe foregoing, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), other than
unless (ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of Person and (ii) the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior delivers to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) Trustee (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not with respect to any Affiliate Guarantors, on the other, in the ordinary course of business, and Transaction (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (atransactions) or (b) that involves involving aggregate payments or other assets with a fair market value in excess of $5.0 million, an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and a Board Resolution that has been adopted by a vote of a majority of the terms Independent Directors approving such Affiliate Transaction or, if at the time fewer than three Independent Directors are then in office, a Board Resolution that has been adopted unanimously by the Company's Board of Directors and (b) with respect to any Affiliate Transaction (or series of related transactions) involving aggregate payments of $15.0 million or more, the certificates described in the preceding clause (a) and an opinion as to the fairness to the Company or such Subsidiary from a financial point of view issued by an Independent Financial Advisor; provided, however, that the following shall not be deemed to be Affiliate Transactions: (i) transactions exclusively between or among (1) the Company and one or more Restricted Subsidiaries or (2) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Company (other than another Restricted Subsidiary) owns Capital Stock of any such -44- 50 Restricted Subsidiary; (ii) transactions between the Company or any Restricted Subsidiary and any qualified employee stock ownership plan established for the benefit of the Company's employees, or the establishment or maintenance of any such plan; (iii) reasonable director, officer and employee compensation and other benefits, and indemnification arrangements approved by a majority of the Independent Directors on the Board of Directors; (iv) transactions permitted under Section 4.05; (v) the pledge of Capital Stock of Unrestricted Subsidiaries to support the Indebtedness thereof; (vi) transactions between the Company and any Restricted Subsidiary and KPAA, so long as no direct or indirect holder of an equity interest in KPAA (other than the Company or a Restricted Subsidiary) is an Affiliate of the Company or a Restricted Subsidiary and provided that at the time of such transactions, taken as a whole, are fair to transaction the Company and its Restricted Subsidiaries, taken as a whole, or are on terms Subsidiary have no less favorable to economic benefit in KPAA than the Company and its Restricted Subsidiaries, taken Subsidiaries had as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
Issue Date; (6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9vii) transactions between the Company or any Restricted Subsidiary and any Affiliate of the Company or any of its Subsidiaries and any Securitization Entity in connection with such Restricted Subsidiary that is a Qualified Securitization Transaction, in each casejoint venture, provided that no direct or indirect holder of an equity interest in such transactions are not otherwise prohibited by this Indenture; and
joint venture (10other than the Company or a Restricted Subsidiary) any transaction is an Affiliate of the type set forth Company or such Restricted Subsidiary; and (viii) sale of inventory in clause (7) the ordinary course of business from the Company or (8) any Restricted Subsidiary to any Affiliate of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCompany.
Appears in 1 contract
Sources: Indenture (Pool Energy Services Co)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to make any payment to, directly or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction or series of related transactions transactions, contract, agreement, loan, advance or guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach of the foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms terms, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary in the reasonable judgment of the Company than those terms that would could reasonably have been obtained at that time in a comparable arm’s length transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each unaffiliated party; and
(ii) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If , the Company or any Restricted Subsidiary delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that approving such Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view.
(b) The foregoing limitation does not limit, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do shall not apply to:
(1) reasonable Restricted Payments that are permitted by Section 4.7 and Permitted Investments;
(2) the payment of customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary;
(3) any customary employment agreement, consulting agreement, severance agreement, employee benefit plan, compensation paid to or benefit arrangement, indemnification agreement or any similar arrangement entered into by, and indemnity provided on behalf of officersany policy or similar arrangement of, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregatepayments pursuant thereto;
(4) transactions between or among the Company and/or its Restricted Subsidiaries (including any Person that becomes (including by redesignation, merger into or with or transfer of all or substantially all of its assets to) a Restricted Subsidiary as a result of such transaction;
(5) the sale or issuance of Capital Interests (other than Redeemable Capital Interests) of the Company;
(6) any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more adverse in any material respect (in the judgment of the Company) to the Holders of the Notes when taken as a whole compared to the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(7) transactions in which the Company or any of its Restricted Subsidiaries delivers to the Trustee a written opinion from an Independent Financial Advisor to the effect that the transaction is fair, from a financial standpoint, to the Company or any relevant Restricted Subsidiaries or that such transaction is on terms, taken as a whole, that are not materially less favorable to the Company or the relevant Restricted Subsidiary in the reasonable judgment of the Company than those that could reasonably have been obtained at the time in an arm’s-length transaction with an unaffiliated party;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any agreement disclosed in the Offering Memorandum to which it is a party as of the Issue Date; 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 shall only be permitted by this clause (8) to the extent that the terms of any such amendment or new agreement are not otherwise adverse in any material respect (in the judgment of the Company) to the Holders of the Notes when taken as a whole;
(9) any contribution of capital to the Company and transactions with an Affiliate where the only consideration paid is Capital Interests of the Company;
(10) transactions permitted by, and complying with, Section 5.1;
(11) transactions with any joint venture;
(12) transactions with Affiliates solely in their capacity as holders of Debt or Capital Interests of the Company or any of its Subsidiaries, on so long as there are such non- Affiliate holders of such class and such Affiliates are treated no more favorably than all other holders of such class generally;
(13) the one handentering into of any tax sharing, allocation or similar agreement and any payments by the Affiliate GuarantorsCompany or any of the Restricted Subsidiaries pursuant to any tax sharing, on allocation or similar agreement; provided that the otheramount of any such payments to the direct or indirect owners of the Company for any taxable year shall not exceed the amount permitted under clause (xiv) of Section 4.7(b);
(14) transactions with Unrestricted Subsidiaries, customers, clients, lessors, landlords, contractors, suppliers, providers or purchasers or sellers of goods or services, in each case, in the ordinary course of business or consistent with past practice and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, Indenture which are fair to the Company and its Restricted Subsidiaries or are on no less favorable terms than those that could reasonably have been obtained at such time from an unaffiliated party, in either case in the reasonable determination of the Company;
(15) pledges of the Capital Interests of Unrestricted Subsidiaries;
(16) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Company) for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; provided that after giving effect to any such transactions, the security interests in the Collateral, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Companynot be materially impaired;
(617) any consolidation, amalgamation or merger of the Company or the Issuer with or into, or sale, assignment, transfer, lease, conveyance or other disposition of all or part of the properties and assets of the Company or the Issuer to, an Affiliate of the Company solely for the purpose of (a) forming or collapsing a Phosphates Combination holding company structure, (b) reincorporating or reorganizing the Company or the Issuer in a new jurisdiction, (c) changing the legal domicile of the Company or the Issuer, (d) changing the legal form of the Company or the Issuer or (e) otherwise converting the Company or the Issuer into a Person organized or existing under the laws of another jurisdiction;
(18) transactions effected as part of a Qualified Receivables Transaction;
(719) any agreement between any Person and an Affiliate of such Person existing at the issuance time such Person is acquired by or merged, consolidated or amalgamated with or into, or otherwise acquired by, the Company or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal is not more adverse in any material respect (in the judgment of the Company) to the Holders of the Notes when taken as a guarantee by whole compared to the applicable agreement as in effect on the date of such acquisition, merger or consolidation;
(20) transactions between the Company and/or any of its Restricted Subsidiaries and any Person a director of which is also a director of the Company or any direct or indirect parent of the Company so long as such director abstains from voting as a director of the Company as such direct or indirect parent, as the case may be, on any matter involving such other Person;
(21) Member and Employee Loans and payments in respect thereof;
(22) payments by the Company or any of its Restricted Subsidiaries (a) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with respect the acquisitions or divestitures, which payments are approved by the Company in good faith, and the payment of transaction fees, out-of-pocket fees and expenses incurred in connection therewith and (b) for indemnification and similar expenses;
(23) the Transactions and the payment of any reasonable fees or expenses incurred in connection therewith (including dividends to any Indebtedness direct or indirect parent entities of any the Company to fund payment) and all legal, accounting and other professional fees and expenses;
(24) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate Guarantorof the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Capital Interest in, or controls, such Person; and
(25) to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 requiring the consent or agreement of this Indenture;
(9) transactions between an Affiliate, the entering into, or any amendment of, the organizational documents of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventRestricted Subsidiaries.
Appears in 1 contract
Sources: Indenture
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company involving aggregate consideration in excess of $5.0 million (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably could have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if, as determined in good faith by the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value consideration in excess of $30.0 million, then prior an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $60.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and attaching a resolution of the Board of Directors of the Company to the consummation effect that such Affiliate Transaction or series of that related Affiliate TransactionTransactions has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, the Company must obtain a favorable opinion from an Independent Financial Advisor as therefore, will not be subject to the fairness provisions of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation paid to and indemnity provided on behalf of officers, directors, employees plan or consultants of arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or an Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales or issuances of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(6) any Permitted Investments or Restricted Payments or Permitted Payments that are permitted by Section 4.07;
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that a director or manager of which is also a director or manager of the Company or such Restricted Subsidiary, as applicable; provided that such director or manager abstains from voting as a director or manager of the Company or such Restricted Subsidiary, as applicable, on such transaction;
(8) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the prior paragraph of this Section 4.11;
(9) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of (or any guarantee by the Company or any Restricted Subsidiary limited in recourse solely to) Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Unrestricted Subsidiaries;
(10) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(11) any contracts for exploring for, drilling, developing, producing, processing, gathering, transporting, marketing or storing Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, that are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then on the terms no less favorable than those available from third parties on an arm’s length basis, in each case as determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(212) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted with Unrestricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted SubsidiariesSubsidiaries than those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties, taken as or if neither the Company nor any Restricted Subsidiary has entered into a wholesimilar contract with a third party, than then on the terms which reasonably would have been obtained no less favorable than those available from third parties on an unrelated partyarm’s length basis, in each case, case as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(613) a Phosphates Combination Transaction;loans or advances to employees in the ordinary course of business not to exceed $2.5 million in aggregate principal amount at any one time outstanding; and
(714) transactions (other than purchases or sales of assets) effected in accordance with the issuance terms of a guarantee by the Services Agreement as in effect on the Date of this Indenture and any amendment or replacement of the Services Agreement on terms no more favorable to the Affiliates of the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantorparty thereto than those available from third parties on an arm’s length basis. In addition, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of if the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with purchases or otherwise acquires assets or properties from a Qualified Securitization TransactionPerson which is not an Affiliate, in each case, provided that such transactions are not otherwise prohibited the purchase or acquisition by this Indenture; and
(10) any transaction an Affiliate of the type set forth Company of an interest in clause (7) all or (8) a portion of the definition assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or acquisition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction), and if the Company or any of “Asset Sale”. This Section 4.12 will its Restricted Subsidiaries sells, conveys or otherwise disposes of assets or other properties to a Person who is not apply after an Affiliate, the Fall-Away Eventsale or other disposition by an Affiliate of the Company of an interest in all or a portion of the assets or properties sold shall not be deemed an Affiliate Transaction (or cause such sale or other disposition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction).
Appears in 1 contract
Sources: Indenture (Sanchez Energy Corp)
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “"Affiliate Transaction”"), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10,000,000, a Board Resolution set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this Section 4.08 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25,000,000, an opinion as to the fairness to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each such Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs of this Section 4.12 do not apply toprior paragraph:
(1) any employment agreement, stock options or other compensation agreements or plans and other reasonable fees fees, compensation benefits and compensation indemnities paid to and indemnity provided on behalf of officers, directors, employees or consultants of entered into by the Company or any of its the Company's Restricted Subsidiaries as reasonably determined in good faith by the ordinary course of business to or with the Company’s Board of Directors or a senior officer of 's and the Company's Restricted Subsidiaries' officers, directors and employees;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such and/or the Company's Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement transactions with a Person that is the Company's Affiliate solely because the Company owns an Equity Interest in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregatePerson;
(4) transactions between the Company and/or its Restricted Subsidiarieswith suppliers or other purchasers or sales of goods or services, on the one hand, and the Affiliate Guarantors, on the other, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance accordance with the terms of this Indenturethe Indenture which are fair to the Company or the Company's Restricted Subsidiaries, as applicable, in the good faith determination of the Company's Board of Directors or the Company's senior management and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(5) issuances of Equity Interests (aother than Disqualified Stock) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;'s Affiliates; and
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee Restricted Payments that are permitted by the Company and/or any provisions of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event4.04 hereof.
Appears in 1 contract
Sources: Second Supplemental Indenture (Great Atlantic & Pacific Tea Co Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each ; and
(2) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million. This approval must be , a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction) have determined in good faith that the criteria set forth in the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a board resolution that states that such board has determined that Board Resolution. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any transaction complies with the foregoing provisions. If Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(2) Restricted Payments and Permitted Investments permitted by this Indenture;
(3) the payment to the Sponsor and any of its officers or Affiliates by the Company or any of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination or indemnification payments and related expenses pursuant to the Management Agreement as in effect on the Issue Date or any amendment thereto (so long as any such amendment (x) does not increase the amount of fees payable to the Sponsor and (y) is not less advantageous to the Holders of the Notes in any material respect than the Management Agreement);
(4) payments in respect of employment, severance and any other compensation arrangements with, and fees and expenses paid to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies, or any Restricted Subsidiary, in the ordinary course of business;
(5) payments made by the Company or any Restricted Subsidiary to the Sponsor for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by majority of the Board of Directors of the Company enters into an (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction that involves aggregate payments Transaction) in good faith;
(6) transactions in which the Company or other assets with a fair market value in excess of $30.0 million, then prior any Restricted Subsidiary delivers to the consummation of that Affiliate Transaction, the Company must obtain Trustee a favorable opinion letter from an Independent Financial Advisor as stating that such transaction is fair to the fairness of that Affiliate Transaction to the Holders of Notes Company or such Restricted Subsidiary from a financial point of view, and deliver that opinion to view or meets the Trustee. The restrictions described in requirements of clause (1) of the preceding paragraphs first paragraph of this Section 4.12 do not apply to:4.11;
(17) reasonable fees and compensation paid payments or loans (or cancellations of loans) to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiaries as reasonably determined Subsidiary which are approved by the Board of Directors of the Company in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions which are not otherwise prohibited by any provision contained in permitted under this Indenture;
(3) 8) payments made or performance under any agreement as in effect on the Issue Date as (other than the Management Agreement (which are permitted under clause (3) of the second paragraph of this Section 4.11)) that are disclosed in effect on the Offering Circular, including with additional parties that may be added subsequent to the Issue Date and any amendment thereto to the extent such date or as thereafter amended in a manner an amendment is not materially less favorable adverse to the interests of the Holders of the Notes in the aggregateany material respect;
(49) transactions between the Company and/or with customers, clients, suppliers, or purchasers or sellers of goods or services (including Parent and its Restricted Subsidiaries), on the one hand, and the Affiliate Guarantors, on the other, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic Indenture that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and or its Restricted Subsidiaries, taken as a wholein the reasonable determination of the members of the Board of Directors of the Company or the senior management thereof, or are on terms no less at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(10) if otherwise permitted hereunder, the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company (other than a Subsidiary);
(11) any transaction permitted by Section 5.1;
(12) any transaction with a Receivables Subsidiary effected as part of a Receivables Facility;
(13) the Transactions and the payment of the Transaction Expenses;
(14) payments by the Company and its Restricted SubsidiariesSubsidiaries to each other pursuant to tax sharing agreements or arrangements among Parent and its subsidiaries on customary terms (including, taken as a wholewithout limitation, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturetransfer pricing initiatives); and
(1015) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventtransactions among Foreign Subsidiaries for tax planning and tax efficiency purposes.
Appears in 1 contract
Sources: Indenture (VWR Funding, Inc.)
Limitation on Transactions with Affiliates. The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of its Affiliates $5.0 million on or after the Closing Date (each, an “Affiliate Transaction”), other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Borrower or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Borrower or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) the Company must approve each Borrower delivers to the Administrative Agent:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 10.0 million. This approval must be evidenced , a resolution of the Board of Directors of the Borrower set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 6.10 and that such Affiliate Transaction has been approved by a board resolution that states that majority of the disinterested members of the Board of Directors of the Borrower; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Borrower or such board has determined that Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the transaction complies with provisions of the foregoing provisions. If prior paragraph:
(1) any consulting or employment agreement or arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries approved by a majority of the disinterested members of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries);
(2) transactions between or among the Borrower and/or its Restricted Subsidiaries;
(3) payment of reasonable directors’ fees to directors of the Borrower, any Parent or any Restricted Subsidiary and the provision of customary indemnities to directors, officers, employees or consultants of the Company enters into Borrower, and any Parent or any Restricted Subsidiary;
(4) issuances and sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Borrower;
(5) any tax sharing agreement or arrangement and payments pursuant thereto among the Borrower and its Subsidiaries and any other Person with which the Borrower or its Subsidiaries is required or permitted to file a consolidated, combined or unitary tax return or with which the Borrower or any of its Restricted Subsidiaries is or could be part of a consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited by this Agreement;
(6) Restricted Payments that are permitted by Section 6.07 or any Permitted Investments;
(7) the payment (directly or through any Parent) of annual management, consulting, monitoring and advising fees and related expenses to the Equity Sponsor and its respective Affiliates pursuant to the Sponsor Management Agreement, as the same may be amended, modified or replaced from time to time, so long as any such amendment, modification or replacement is not materially less favorable to the Borrower and its Restricted Subsidiaries than such agreement as in effect on the Closing Date;
(8) payments by the Borrower or any of its Restricted Subsidiaries to the Equity Sponsor and its Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) in good faith; provided that the maximum aggregate amount of any such fees in any 12-month period shall not exceed 1.25% of the aggregate transaction value (including enterprise value in connection with acquisitions or divestitures) (or portion thereof) in respect of which such services are rendered (excluding, in any case, commitment or similar fees for providing financing);
(9) loans to employees that are approved in good faith by a majority of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) in an Affiliate Transaction that involves aggregate amount not to exceed $5.0 million outstanding at any time and advances and expense reimbursements to employees in the ordinary course of business;
(10) agreements (and payments relating thereto) existing on the Closing Date, as the same may be amended, modified or other assets replaced from time to time, so long as any amendment, modification or replacement is not materially less favorable to the Borrower and its Restricted Subsidiaries than such agreements as in effect on the Closing Date;
(11) transactions with a fair market value joint venture engaged in excess a Permitted Business; provided that all the outstanding ownership interests of $30.0 millionsuch joint venture are owned only by the Borrower, then prior its Restricted Subsidiaries and Persons who are not Affiliates of the Borrower;
(12) transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(13) transactions with customers, clients, suppliers or purchasers or sellers of goods, in each case in the ordinary course of business; and
(14) transactions which have been approved by a majority of the disinterested members of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) and with respect to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from which an Independent Financial Advisor has delivered an opinion as to the fairness of that Affiliate Transaction to the Holders Borrower or such Restricted Subsidiary of Notes such transaction from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Parent, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Parent delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf any transaction or series of officersrelated transactions involving aggregate consideration of less than $1.0 million;
(2) any employment, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company Parent or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenturebusiness;
(3) transactions between or among any agreement in effect on of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateParent and its Restricted Subsidiaries;
(4) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns an Equity Interest in such Person;
(5) transactions effected in accordance with the terms of agreements that are identified in the Offering Memorandum, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Parent in any material respect than the agreement so amended or replaced;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Parent or a Restricted Subsidiary or Affiliate of the Parent, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Parent;
(8) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(9) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the date of this Indenture and as it may be amended, provided that any such amendment is not less favorable to the Parent in any material respect than the agreement prior to such amendment;
(10) transactions between the Company and/or Parent or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Parent or any direct or indirect parent company of the Parent, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Parent or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Parent or any direct or indirect parent company of the Parent, as the case may be, on any transaction with such other Person; and
(11) in the one handcase of contracts for gathering, and the Affiliate Guarantorstransporting, on the othertreating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Parent or any Restricted Subsidiary and otherwise in compliance third parties, or if neither the Parent or any Restricted Subsidiary has entered into a similar contract with a third party, then the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained those available from third parties on an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallarm’s-Away Eventlength basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit suffer to exist any transaction or series of related transactions with(including, without limitation, the sale, purchase, exchange or for lease of assets, property or services) with any Affiliate (each an "AFFILIATE TRANSACTION") or extend, renew, waive or otherwise modify the benefit of, terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Restricted Subsidiaries or between or among Restricted Subsidiaries; or (ii) the terms of its Affiliates (each, an “such Affiliate Transaction”), other than
(a) Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that Transaction are no less favorable to the Company or such Restricted Subsidiary, as the relevant case may be, than the terms which could reasonably be obtained by the Company or such Restricted Subsidiary than those terms that would reasonably have been obtained Subsidiary, as the case may be, at that such time in a comparable transaction by the Company or the relevant Restricted Subsidiary and made on an unrelated Personarm's-length basis between unaffiliated parties. The Board of Directors or a senior officer of the Company must approve each In any Affiliate Transaction that involves aggregate payments (or other assets with any series of related Affiliate Transactions) involving an amount or having a fair market value Fair Market Value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If 5,000,000 which is not permitted under clause (a)(i) of this Section 4.09, the Company or any Restricted Subsidiary shall obtain a resolution of the disinterested members of the Board of Directors of the Company enters into an certifying that they have approved such Affiliate Transaction and determined that involves aggregate payments such Affiliate Transaction complies with clause (a)(ii) of this Section 4.09. In addition, in any Affiliate Transaction (or other assets with any series of related Affiliate Transactions) involving an amount or having a fair market value Fair Market Value in excess of $30.0 million, then prior to the consummation 50,000,000 which is not permitted under clause (a)(i) of that Affiliate Transactionthis Section 4.09, the Company must obtain a favorable written opinion from an Independent Financial Advisor as that such transaction or transactions are fair to the fairness of that Affiliate Transaction to Company or such Restricted Subsidiary, as the Holders of Notes case may be, from a financial point of view, and deliver that opinion to the Trustee. .
(b) The restrictions described in the preceding paragraphs provisions of this Section 4.12 do 4.09(a) will not apply to:
to (1i) any Restricted Payment made in compliance with Section 4.07 hereof, (ii) any payment of customary and reasonable fees and to directors of the Company, (iii) any employment agreement or compensation paid to and indemnity provided arrangement in effect on behalf of officers, directors, employees the Issue Date or consultants of entered into thereafter by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance consistent with the terms past practice of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole(iv) transactions in the ordinary course of business pursuant to any pension, share or partnership unit option, profit sharing, partnership unit or share appreciation rights or other employee benefit plan or agreement (including insurance, indemnification and reimbursement plans and arrangements for directors, officers and employees), (v) loans to employees not to exceed $10,000,000 in aggregate amount at any one time outstanding, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, (vi) issuances of Capital Stock (other than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer Disqualified Capital Stock) of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates involving aggregate payment or consideration in excess of $30.0 million (each, an “Affiliate Transaction”), other than
: (ax) Affiliate Transactions described in the last paragraph of this permitted under Section 4.12412(b); and
and (by) Affiliate Transactions on terms that taken as a whole are no not materially less favorable than those that would have reasonably been expected 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 or, if in the good faith judgment of the Board of Directors of the Company no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is fair to the Company or the relevant such Restricted Subsidiary than those terms that would reasonably have been obtained at that time in from a comparable transaction by the Company financial point of view. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or the relevant Restricted Subsidiary and an unrelated Person. The Board part of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves common plan) involving aggregate payments or other assets property with a fair market value Fair Market Value in excess of $15.0 million. This 60.0 million shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, such approval must to be evidenced by a board resolution that states Board Resolution stating that such board Board of Directors has determined that the such transaction complies with the foregoing provisions. If The Company will deliver to the Trustee an Officer’s Certificate certifying such Board Resolution.
(b) The restrictions of Section 412(a) shall not apply to:
(i) employment, consulting and compensation arrangements and agreements of the Company or any Restricted Subsidiary consistent with past practice or approved by a majority of the disinterested members of the Board of Directors of the Company enters into an Affiliate Transaction that involves aggregate payments (or other assets with a fair market value in excess committee comprised of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:disinterested directors);
(1ii) reasonable fees and compensation paid to to, and indemnity provided on behalf of of, current or former officers, directors, employees employees, consultants or consultants agents of the Company or any of its Restricted Subsidiaries Subsidiary as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Companymanagement;
(2iii) transactions exclusively between or among the Company and any of its the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date Subsidiaries or an entity that becomes a Restricted Subsidiary as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms result of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, transaction; provided that such transactions are not otherwise prohibited by this Indenture;
(iv) Restricted Payments, Permitted Investments or Permitted Liens permitted by this Indenture;
(v) transactions pursuant to agreements or arrangements in effect on the Issue Date or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Holders of the Notes than the agreement or arrangement in existence on the Issue Date;
(vi) transactions with respect to which the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor;
(vii) (i) transactions undertaken and agreements entered into in connection with a Permitted Separation Transactions (and the performance of any obligations under such agreements), including transactions or agreements between the Company and/or its Restricted Subsidiaries (or the RemainCo Parent and/or its Restricted Subsidiaries), on the one hand, and the SeparationCo Parent and/or its Subsidiaries, on the other hand, in contemplation of, or in connection with or as a result of a Permitted Separation Transaction and (ii) any renewal, amendment or replacement of the agreements referred to the preceding clause (i) (including the performance of any obligations thereunder) and any transaction undertaken and agreements entered into (and the performance of any obligations thereunder) between the Company and/or its Restricted Subsidiaries (or the RemainCo Parent and/or its Restricted Subsidiaries), on the one hand, and the SeparationCo Parent and/or its Subsidiaries, on the other hand, after the consummation of a Permitted Separation Transaction provided that, in each case pursuant to this clause (ii), the Company determines in good faith that such renewal, amendment, replacement or new transaction or agreement is fair to the Company and its Restricted Subsidiaries in all material respects;
(viii) the sale, issuance or transfer of Equity Interests (other than Disqualified Capital Stock or Preferred Stock) of the Company or a Restricted Subsidiary to any Person and the granting and performance of customary registration rights;
(a) payments or loans (or cancellation of loans) or advances to employees, officers, directors, members of management, consultants or independent contractors (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Company or any of its Restricted Subsidiaries and collective bargaining agreements, employment agreements, severance arrangements, compensatory (including profit sharing) arrangements, stock option plans, benefit plan, health, disability or similar insurance plan and other similar arrangements with such employees, officers, directors, managers, members of management, consultants or independent contractors (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) in each case, for bona fide business purposes and (b) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with future, present or former employees, officers, directors, members of management, consultants or independent contractors approved by the Board of Directors (or equivalent governing body) of the Company or any Restricted Subsidiary in good faith;
(x) any transaction effected as part of a Permitted Receivables Financing;
(xi) any transaction between the Company or any Restricted Subsidiary and any Person, a director of which is also a director or officer of the Company or any Restricted Subsidiary; provided, however, that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as the case may be, on any matter involving such other Person;
(xii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Company in an Officer’s Certificate) for the purposes of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture;
(xiii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xiv) (i) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and (ii) any payments to or from, and transactions with any joint venture or any variable interest entity in the ordinary course of business and consistent with past practice (including, without limitation, any cash management services related thereto);
(xv) licenses of, or other grants of rights to use, intellectual property granted by the Company or any Restricted Subsidiary in the ordinary course of business or consistent with industry practice;
(xvi) contemporaneous purchases and/or sales by (a) the Company or any of its Restricted Subsidiaries and (b) an Affiliate, of assets, Capital Stock, bonds, notes, debentures or other debt securities, and bank loans, participations or similar obligations at substantially the same price;
(xvii) investments by Affiliates in Indebtedness of the Company or any of its Subsidiaries, so long as non-Affiliates were also offered the opportunity to invest in such Indebtedness, and transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, to the extent such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally; and
(10xviii) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person entered into in the ordinary course of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventbusiness.
Appears in 1 contract
Sources: Indenture (Tenneco Inc)
Limitation on Transactions with Affiliates. The Each of the Company and Holdings will not, and Holdings will not permit any of its Restricted Subsidiaries (including the Company) to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates Holdings (each, an “Affiliate Transaction”), other than) unless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or Holdings or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Holdings or such Restricted Subsidiary and with an unrelated Person. The ; and
(2) Holdings delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a Board Resolution (or, if Holdings has no disinterested member, of the Parent) set forth in an Officer’s Certificate of Holdings (or the Parent) certifying that such Affiliate Transaction complies with this Section 4.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors or a senior officer of Holdings (or, if Holdings has no disinterested member, of the Company must approve each Parent); and
(b) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into , an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness to the Company or Holdings or such Restricted Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of industry recognized standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs of this Section 4.12 do not apply toprior paragraph:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment agreement, directorsemployee benefit plan, employees officer or consultants of director indemnification agreement or any similar arrangement entered into by the Company or Holdings or any of its Restricted Subsidiaries as reasonably determined in good faith by (including the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company or Holdings or its Restricted Subsidiaries (including the Company);
(3) transactions with a Person (other than an Unrestricted Subsidiary of Holdings) that is an Affiliate of Holdings solely because Holdings owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors’ fees to Persons who are not otherwise in compliance with Affiliates of the terms of this IndentureParent or Holdings;
(5) any issuance of Equity Interests (aother than Disqualified Stock) transactions between of Holdings to, or receipt of any contribution to the Company and/or its Restricted Subsidiariescommon equity capital of Holdings in respect of Equity Interests (other than Disqualified Stock) held by, on the one hand, and Subsidiaries Affiliates of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause Holdings;
(6) or Restricted Payments that do not violate the provisions of this Indenture under Section 4.08; and
(7) of the second paragraph of Section 4.09; provided that in the case transactions effected pursuant to any Specified Management Agreement and any amendment, modification or replacement of any such transaction agreement (so long as such amendment or series of related transactions replacement is not materially more disadvantageous to the Holders of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsNotes, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event).
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving an aggregate consideration in excess of $500,000, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted Subsidiary and with an unrelated Person. The ; and
(2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a majority of the disinterested members of the Board of Directors or a senior officer of the Company must approve each have determined in good faith that the criteria set forth in the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction that involves as evidenced by a resolution of the Board of Directors of the Company or, in the case of any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 million. This approval must , an Independent Financial Advisor has delivered an opinion as to the fairness to the Holders of such Affiliate Transactions from a financial point of view; provided that so long as the Sponsors beneficially own more than 50.0% of the Voting Stock of the Company, any Affiliate Transaction or series of related Affiliate Transactions requiring the good faith determination of the Board of Directors of the Company shall be evidenced made by a board resolution majority of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(3) any transaction between or among the Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(4) Restricted Payments and Permitted Investments (other than pursuant to clauses (3) and (10) of the definition thereof) permitted by this Indenture;
(5) the payment to the Sponsors, any of their Affiliates, and officers or Affiliates of the Company or any of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination payments and related reasonable expenses pursuant to (A) the Management Agreement or any amendment thereto (so long as any such amendment is not less advantageous in the good faith judgment of the Board of Directors of the Company to the Holders in any material respect than the Management Agreement in effect on the Issue Date) or (B) other agreements as in effect on the Issue Date that states that such board has determined that the transaction complies are entered into in connection with the foregoing provisions. If 2007 Transactions and as in effect on the Issue Date or any amendment thereto (so long as any such amendment is not less advantageous in the good faith judgment of the Board of Directors of the Company to the Holders in any material respect than the original agreement as in effect on the Issue Date); provided that in no event shall the aggregate payments permitted under this clause (3) exceed $6.0 million per year;
(6) the payment of reasonable compensation and fees to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent corporations, or any Restricted Subsidiary, as determined in good faith by the Board of Directors of the Company or senior management thereof;
(7) payments made by the Company or any Restricted Subsidiary to the Sponsors and any of their Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the members of the Board of Directors of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value majority of the disinterested members of the Board of Directors of the Company, in excess of $30.0 million, then prior each case in good faith;
(8) transactions in which the Company or any Restricted Subsidiary delivers to the consummation of that Affiliate Transaction, the Company must obtain Trustee a favorable opinion letter from an Independent Financial Advisor as stating that such transaction is fair to the fairness of that Affiliate Transaction to the Holders of Notes Company or such Restricted Subsidiary from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:;
(19) reasonable fees and compensation paid payments or loans (or cancellations of loans) to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its direct or indirect parent corporations or any Restricted Subsidiaries as reasonably determined in good faith Subsidiary which are approved by the Company’s Board of Directors or a senior officer of the CompanyCompany and which are otherwise permitted under this Indenture, but in any event not to exceed $5.0 million in the aggregate outstanding at any one time;
(210) transactions exclusively between payments made or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) performance under any agreement as in effect on the Issue Date (other than the Management Agreement and Shareholders Agreement, but including, without limitation, each of the other agreements entered into in connection with the 2007 Transactions);
(11) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the Shareholders Agreement (including any registration rights agreement or purchase agreements related thereto to which it is a party on the Issue Date and any similar agreement that it may enter into thereafter); provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to the Shareholders Agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (9) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous in the good faith judgment of the Board of Directors of the Company to Holders in any material respect than the original agreement as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateIssue Date;
(412) transactions between the Company and/or with customers, clients, suppliers, or purchasers or sellers of goods or services (including Holdings and its Restricted Subsidiaries), on the one hand, and the Affiliate Guarantors, on the other, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic Indenture that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and or its Restricted Subsidiaries, taken as a whole, Subsidiaries or are on terms no less at least as favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which would reasonably would have been obtained from entered into at such time with an unrelated unaffiliated party, in each case, as is reasonably determined case in good faith by the reasonable determination of the members of the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or the senior management thereof;
(13) if otherwise permitted hereunder, the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries and or any other Affiliates of the Company (other than a Subsidiary);
(14) any transaction with a Securitization Entity in connection with Subsidiary effected as part of a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureFinancing; and
(1015) any transaction effected in accordance with the terms of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventAssignment and Assumption.
Appears in 1 contract
Sources: Credit Agreement (Music123, Inc.)
Limitation on Transactions with Affiliates. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Parent or any Affiliate of any Restricted Subsidiary (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Parent, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Parent delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of this Section 4.12 do not apply tothe prior paragraph:
(1) reasonable fees and compensation paid to and indemnity provided on behalf any transaction or series of officersrelated transactions involving aggregate consideration of less than $15.0 million;
(2) any employment, directorsconsulting or similar agreement or arrangement, employees employee benefit plan, equity award, equity option or consultants of equity appreciation agreement or plan entered into by the Company Parent or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board ordinary course of Directors business and payments, awards, grants or a senior officer issuances of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenturesecurities made pursuant thereto;
(3) transactions between or among any of the Parent and/or its Restricted Subsidiaries;
(4) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because Parent owns, directly or indirectly, an Equity Interest, or controls, in such Person;
(5) transactions effected in accordance with the terms of agreements that are identified or incorporated by reference in the offering memorandum, in each case as such agreements are in effect on the Issue Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is, in the good faith judgment of a responsible Officer of the General Partner (or, after the Corporate Reorganization, the Parent), no less advantageous to the Parent in any material respect than the agreement so amended or replaced;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the General Partner or the Parent or a Restricted Subsidiary or Affiliate of the Parent, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Parent;
(8) Restricted Payments that do not violate the provisions of this Indenture described above in Section 4.07 or Permitted Investments;
(9) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as in effect on it may be amended, provided that any such date or as thereafter amended in a manner amendment is not materially less favorable to Summit Midstream Partners, LP in any material respect than the Holders of Notes in the aggregateagreement prior to such amendment;
(410) transactions between the Company and/or Parent or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Parent or any Parent Entity, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Parent or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Parent or any Parent Entity, as the case may be, on any transaction with such other Person;
(11) (a) guarantees by the one handParent or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Parent or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;
(12) payments to an Affiliate Guarantors, in respect of the Notes or the Notes Guarantees or any other Indebtedness of the Parent or any Restricted Subsidiary on the othersame basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;
(13) payment of loans or advances to employees not to exceed $5.0 million in the aggregate at any one time outstanding;
(14) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Parent or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Parent or such Restricted Subsidiary;
(15) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this IndentureIndenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to the Parent and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated person, in the good faith determination of the Parent’s Board of Directors or any Officer of the General Partner (or, after the Corporate Reorganization, the Parent) involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(516) (a) transactions between leases entered into by the Company and/or Parent or any of its Restricted Subsidiaries, on the one handas lessor, and Subsidiaries an Unrestricted Subsidiary or Joint Venture of Mosaic the Parent or such Restricted Subsidiary, as lessee, with respect to a pipeline or similar asset operated by such Unrestricted Subsidiary or Joint Venture; provided that the Remaining Present Value of any such leases shall not exceed $30.0 million in the aggregate;
(17) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are not Affiliate Guarantors, on the other, entered into in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are business on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any Parent of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantorand third parties, to or if neither the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company Parent or any of its Subsidiaries and any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided that such transactions then the terms are not otherwise prohibited by this Indentureno less favorable than those available from third parties on an arm’s-length basis; and
(1018) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCorporate Reorganization.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach of the foregoing, an “"Affiliate Transaction”"), other than
unless (ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted such Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of Person and (ii) the Company must approve each delivers to the Trustee (a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 1.0 million. This approval must be evidenced , a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an independent members of the Board of Directors and (b) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 5.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion to the Trusteeappraisal or investment banking firm of national standing. The restrictions described in the preceding paragraphs of this Section 4.12 do foregoing provisions will not apply to:
prohibit (1i) any reasonable fees and employment agreement or other compensation plan or arrangement paid or made available to and indemnity provided on behalf of officers, directors, officers or employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith for services actually rendered or to be rendered and entered into by the Company’s Board Company or any Subsidiary in the ordinary course of Directors or a senior officer of the Company;
business and consistent with past practice; (2ii) transactions exclusively between or among the Company and and/or its Wholly Owned Restricted Subsidiaries; (iii) any Remote Guarantee or Permitted Investment or any Restricted Payment that is permitted by the provisions of its Restricted Subsidiaries or exclusively Section 4.10 hereof; (iv) transactions between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
Unrestricted Subsidiaries of the Company; (3v) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the otherprovision, in the ordinary course of business consistent with past practice and otherwise in compliance with for cash consideration not less than the terms cost thereof, of this Indenture;
support services (5such as accounting, architectural, legal and administrative services) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to by the Company and its Restricted SubsidiariesSubsidiaries to Unrestricted Subsidiaries of the Company and entities in which the Company has, taken as a wholedirectly or indirectly, an equity interest of 20% or are on terms no less favorable to more; (vi) the Tax Payment Agreement; (vii) leases or subleases by the Company and its Restricted Subsidiaries, taken as a whole, than Subsidiaries of real property to Unrestricted Subsidiaries or Persons in which Unrestricted Subsidiaries have an equity interest to the terms extent that such leases or subleases are in effect on the Closing Date; (viii) guarantees of Indebtedness or real property lease obligations of Unrestricted Subsidiaries or entities in which reasonably would Unrestricted Subsidiaries have been obtained from an unrelated party, equity interest to the extent that such guarantees are in each case, as is reasonably determined in good faith by effect on the Board of Directors Closing Date; or a senior officer of the Company;
(6ix) a Phosphates Combination Transaction;
(7) the issuance of a guarantee payments by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate GuarantorSbarro Enterprises, to L.P. under the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made sublease for the Company's administrative office building as in compliance with Section 4.09 of this Indenture;
(9) transactions between any of effect on the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventClosing Date.
Appears in 1 contract
Sources: Indenture (Sbarro Inc)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $10.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $20.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or cash or equity settled equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement, consulting agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or which is customary in the Oil and compensation paid Gas Business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries (including, amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings to the Intercompany Note that are permitted by the terms of this Indenture or the Security Documents);
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person or has nominated or appointed a person to the Board of Directors of that Person;
(4) customary compensation, indemnification and indemnity provided on behalf of other benefits made available to officers, directors, employees or consultants of the Company or any a Restricted Subsidiary of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board , including reimbursement or advancement of Directors out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) issuances of Equity Interests (other than Disqualified Stock) of the Company to, or a senior officer receipt of capital contributions from, Affiliates of the Company and any dividend or distribution payable in Equity Interests (other than Disqualified Stock) of the Company;
(26) any Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(7) transactions exclusively between or among the Company and or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or exclusively between or among such Restricted SubsidiariesSubsidiary, as applicable; provided that such transactions are not otherwise prohibited by director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any provision contained in this Indenturematter involving such other Person;
(3) 8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture, as such agreements may be amended, modified, supplemented or replaced from time to time; provided, however, that any amendment, modification, supplement or replacement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the Issue Date date of this Indenture (as in effect on such date or as thereafter amended in conclusively evidenced by a manner not materially less favorable to the Holders of Notes in the aggregateBoard Resolution);
(49) transactions between any transaction in which the Company and/or or any of its Restricted Subsidiaries, on as the one handcase may be, and delivers to the Affiliate GuarantorsTrustee an opinion from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the other, Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the preceding paragraph of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business or which are customary in the Oil and Gas Business and (b) pledges by the Company or any Restricted Subsidiary of the Company of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary of the Company if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(12) transactions with joint venture partners, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business or which are customary in the Oil and Gas Business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between Indenture similar to those contained in similar contracts entered into by the Company and/or its or any Restricted SubsidiariesSubsidiary and unrelated third parties, on or if neither the one handCompany nor any Restricted Subsidiary has entered into a similar contract with an unrelated third party, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherwhich are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated third party, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior any executive officer of the CompanyCompany involved in or otherwise familiar with such transaction;
(613) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by dividends and distributions to the Company and/or any of and its Restricted Subsidiaries with respect to by any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureUnrestricted Subsidiary; and
(1014) any transaction transactions pursuant to the Stockholder Agreement as in effect on the date of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventthis Indenture.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that taken as a whole are no either not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors Person or a senior officer of are otherwise fair to the Company must approve each or such Restricted Subsidiary from a financial point of view;
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 50.0 million. This approval must be evidenced by , a board resolution that states of the Board of Directors of the General Partner or Holdco set forth in an Officers’ Certificate certifying that such board has determined that the transaction Affiliate Transaction or series of related Affiliate Transactions complies with the foregoing provisions. If the Company or any Restricted Subsidiary preceding clause (1) of this Section 4.11 and has been approved by a majority of the Company enters into an disinterested members of the Board of Directors of the General Partner or Holdco or otherwise approved in accordance with affiliate transaction procedures specified in the Partnership Agreement; and
(3) with respect any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 150.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain uses commercially reasonable efforts (as determined in good faith by the Company) to deliver to the Trustee a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction such transaction or series or related transactions to the Holders of Notes Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, and deliver that opinion from an Independent Financial Advisor. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in provisions of the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment agreement or arrangement, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indentureany payments or awards pursuant thereto;
(5) (a2) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries or among any of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in such Person;
(4) transactions permitted or contemplated by the terms of (a) the Partnership Agreement with respect to accounting, taken treasury, information technology, insurance and other corporate services, general overhead and other administrative matters and expense reimbursements, including reimbursement of the General Partner for expenses allocable to the Company or otherwise incurred by the General Partner in connection with the operation of the Company’s business, (b) any other agreements in effect on the date of this Indenture, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less favorable to the Company than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company, a wholeRestricted Subsidiary of the Company, the General Partner or Holdco, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Equity Interest) to Affiliates of the Company;
(7) Restricted Payments or Permitted Investments that are permitted by Section 4.07; and
(8) transactions pursuant to sale, purchase, service or lease agreements or contracts that are entered into in the ordinary course of business on terms no substantially similar to those contained in similar contracts or agreements entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties or otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as Subsidiaries than those that would be available in a whole, than the terms which reasonably would have been obtained from transaction with an unrelated third party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5 million, other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on fair and reasonable terms that are no less favorable to the Company Issuer or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company Issuer or the relevant such Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company must approve each Issuer or any Restricted Subsidiary; and
(2) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 15 million. This approval must be evidenced , the Issuer delivers to the Trustee a Board Resolution approving such Affiliate Transaction(s) attached to an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (1) above and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary majority of the Company enters into an Board of Directors of the Issuer or a majority of the disinterested members of the Board of Directors of the Issuer.
(b) The following items will be deemed not to be Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 millionTransactions and, then prior therefore, will not be subject to the consummation provisions of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:4.05(a):
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees transactions between or consultants of among the Company Issuer and/or one or any more of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the CompanySubsidiaries;
(2) transactions exclusively between or among the Company Restricted Payments that are permitted by Section 4.04 and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this IndenturePermitted Investments;
(3) any agreement in effect on issuance or sale of Equity Interests (other than Disqualified Stock) of the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateIssuer;
(4) transactions between the Company and/or its Restricted Subsidiaries, pursuant to agreements or arrangements to be in effect on the one handEffective Date and described in the Offering Circular, or any amendment, modification, or supplement thereto or renewal or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented, renewed or replaced, taken as a whole, is not materially more disadvantageous to the Holders of the Notes than the agreement or arrangement in existence on the Effective Date as determined by the Board of Directors or senior management of the Issuer and the transactions evidenced thereby or pursuant thereto;
(5) any employment, consulting, service, incentive or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Issuer or any Restricted Subsidiary with officers, directors, consultants, managers and employees of the Issuer or any Subsidiary thereof and any payments pursuant thereto, and the payment of compensation and provision of customary benefits to, and the reimbursements of expenses of, officers, directors, consultants, managers and employees of the Issuer or any Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment has been approved by the Board of Directors of the Issuer;
(6) transactions with any Person that is an Affiliate Guarantorsof the Issuer (other than an Unrestricted Subsidiary) solely because the Issuer owns, on directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(7) loans or advances to employees of the otherIssuer or any of its Subsidiaries in the ordinary course of business of the Issuer or the Restricted Subsidiaries in an amount not to exceed $5.0 million in the aggregate at any one time outstanding;
(8) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transactions are fair from a financial point of view to the Company and its Restricted Subsidiaries or meets the requirements of Section 4.05(a)(1);
(9) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this IndentureIndenture which are fair to the Issuer and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer 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 (as determined by the Board of Directors of the Issuer or the senior management thereof in good faith);
(5) (a10) transactions with joint ventures in which the Issuer or a Restricted Subsidiary of the Issuer holds or acquires an ownership interest (whether by way of Equity Interests or otherwise) so long as the terms of any such transactions are no less favorable to the Issuer or any Restricted Subsidiary participating in such joint ventures than they are to other joint venture partners;
(11) contracts or arrangements between the Company Issuer and/or its Subsidiaries and any of its Affiliates regarding coordination and/or joint defense of any litigation or any other action, suit, proceeding, claim or dispute before any courts, arbitrators or governmental authority;
(12) payments to Affiliates in respect of the Notes or any other Indebtedness of the Company or any Restricted Subsidiaries, Subsidiary on the one handsame basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;
(13) the provision of services to directors, and managers, consultants, employees or officers of the Issuer or any of the Restricted Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, nature provided by the Company or any of the Restricted Subsidiaries to customers in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(614) transactions with a Phosphates Combination Securitization Special Purpose Entity pursuant to any Qualified Securitization Transaction;
(715) the issuance sales of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect goods to any Indebtedness of any an Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any for use or distribution outside of the Company or United States that in the good faith judgment of the Issuer complies with any applicable legal requirements of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturethe Internal Revenue Code; and
(1016) any transaction the granting of registration and other customary rights in connection with the type set forth in clause (7) issuance of Equity Interests or (8) of other securities by the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventIssuer.
Appears in 1 contract
Sources: Indenture (GTT Communications, Inc.)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make, amend, renew or extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) if such Affiliate Transaction involves aggregate consideration in excess of $1.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would could reasonably be expected to have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess Person who is not an Affiliate of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of or is otherwise fair to the Company enters into an and its Restricted Subsidiaries from a financial point of view; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million, then prior to the consummation of an Officers’ Certificate certifying that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that such Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in complies with the preceding paragraphs clause (1) of this Section 4.12 do 4.11(a); and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $60.0 million, a Board Resolution of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with the preceding clause (1) of this Section 4.11(a) and has been approved by the Board.
(b) The following items will not apply to:be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) reasonable any employment agreement or arrangement, equity award, equity option or equity appreciation agreement, plan agreement or similar compensation arrangement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and any payments or awards pursuant thereto;
(2) transactions between or among (A) the Company and one or more of its Restricted Subsidiaries and (B) any Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in or otherwise controls such Person;
(4) transactions pursuant to the Administrative Services Agreement, the Master Sublease Agreement and related agreements, the lease agreements between the Company and Chesapeake Energy Corporation and its Subsidiaries in effect as of the Initial Issuance Date as to the use of real property by the Company, the Tax Sharing Agreement and other arrangements with respect to accounting, treasury, information technology, insurance and other corporate services, general overhead and other administrative matters and expense reimbursements and any other agreements or arrangements in effect on the date of this Indenture, or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially less favorable to the Company and its Restricted Subsidiaries than the agreement or arrangement in existence on the date of this Indenture;
(5) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, including pursuant to the Master Services Agreement and the Services Agreement, in each case in the ordinary course of business and otherwise in accordance with the terms of this Indenture, on terms that are not materially less favorable to the Company and its Restricted Subsidiaries than those that could reasonably be expected to have been obtained in a comparable transaction by the Company or its Restricted Subsidiaries with a Person who is not an Affiliate of the Company or any Restricted Subsidiary;
(6) loans or advances to officers, directors, managers and employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures and other purposes, in each case, in the ordinary course of business;
(7) payments in the ordinary course of business under customary benefit programs or arrangements for employees, officers, directors or managers, including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans;
(8) fees and compensation paid to to, and indemnity provided on behalf of of, officers, directors, managers, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacity as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantorsuch, to the extent permitted by Section 4.08;
(8) Permitted Investments such fees and Restricted Payments made in compliance with Section 4.09 of this Indenturecompensation are reasonable and customary;
(9) transactions between any sales of Equity Interests of the Company (other than Disqualified Stock) to Affiliates of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureRestricted Subsidiaries; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Restricted Payments that are permitted by Section 4.12 will not apply after the Fall-Away Event4.07.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $15.0 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million but no greater than $50.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries (or any entity that states becomes a Restricted Subsidiary as a result of such transaction);
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 4.7 hereof (and any transaction that would constitute a Restricted Payment but for the exclusions from the definition thereof);
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such board has determined director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture and which is described in the Prospectus, as such agreements may be amended, modified or supplemented from time to time; provided, however, that any amendment, modification or supplement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the date of this Indenture;
(9) any transaction complies with in which the foregoing provisions. If Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of the Company enters into an of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction that involves aggregate payments or other assets with a fair market value Person in excess its capacity as a holder of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees Indebtedness or consultants Capital Stock of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer Subsidiary of the CompanyCompany if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(212) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted with Unrestricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyPerson, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior any executive officer of the CompanyCompany involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(613) transactions entered into by a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, Person prior to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of time such Person becomes a Subsidiary or is merged or consolidated into the Company or any a Subsidiary (provided such transaction is not entered into in contemplation of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indentureevent); and
(1014) dividends and distributions to the Company and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) Unrestricted Subsidiary or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventJoint Venture.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board from a financial point of Directors or a senior officer of view; and
(2) the Company must approve each delivers to the Trustee:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by either the Conflicts Committee of the Board of Directors of the Company (so long as the members of the Conflicts Committee approving the Affiliate Transaction or series of related Affiliate Transactions are disinterested) or a majority of the disinterested members of the Board of Directors of the Company. This approval must The following items will not be evidenced deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph of this Section 4.11:
(1) any employment agreement or arrangement, equity award, equity option or equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(4) customary compensation, indemnification and other benefits made available to officers, directors or employees of the General Partner, the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(7) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person;
(8) transactions (other than purchases and sales of assets) effected in accordance with the terms of the Omnibus Agreement or the Partnership Agreement, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any such agreements so long as such amendment or replacement agreement is either (a) approved by a board resolution that states majority of disinterested members of the Board of Directors of the Company (or by a majority of the members of a committee of the Board of Directors, so long as all of the members of the committee are disinterested), or (b) not materially more disadvantageous, taken as a whole, to the Company and its Restricted Subsidiaries than the agreement so amended or replaced;
(9) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such board has determined transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the transaction complies with requirements of clause (1) of this Section 4.11;
(10) (a) guarantees by the foregoing provisions. If Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of the Company enters into an of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction that involves aggregate payments with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary of the Company if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(12) in the case of contracts providing for the buying, selling or marketing of Hydrocarbons or operating, construction, storage, platform use or other assets with a fair market value in excess of $30.0 millionoperational contracts, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described any such contracts are entered into in the preceding paragraphs ordinary course of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid business on terms substantially similar to and indemnity provided on behalf of officers, directors, employees or consultants of those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by with unrelated third parties, or if neither the CompanyCompany nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s Board of Directors or a senior officer of the Companylength basis;
(213) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted with Unrestricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherIndenture which are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated partyPerson, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior officer of the Company;any Company Officer involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(614) a Phosphates Combination Transaction;
(7) any purchase of producing oil and gas properties from, or sale or conveyance of such properties to, any Affiliate, in one transaction or series of related transactions, provided that the issuance standardized measure of a guarantee by discounted future net cash flows from the properties involved in the transaction as set forth in the most recent reserve report available to the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantoris less than $5.0 million. In addition, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of if the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with purchases or otherwise acquires assets or properties from a Qualified Securitization TransactionPerson which is not an Affiliate, in each case, provided that such transactions are not otherwise prohibited the purchase or acquisition by this Indenture; and
(10) any transaction an Affiliate of the type set forth Company of an interest in clause (7) all or (8) a portion of the definition assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or acquisition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction), and if the Company or any of “Asset Sale”. This Section 4.12 will its Restricted Subsidiaries sells, conveys or otherwise disposes of assets or other properties to a Person who is not apply after an Affiliate, the Fall-Away Eventsale or other disposition by an Affiliate of the Company of an interest in all or a portion of the assets or properties sold shall not be deemed an Affiliate Transaction (or cause such sale or other disposition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction).
Appears in 1 contract
Sources: Indenture (EV Energy Partners, LP)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any of its their Affiliates (each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $50.0 million, other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company or the relevant such Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company must approve each or any Restricted Subsidiary; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 75.0 million. This approval must be evidenced , a Board Resolution set forth in an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.13 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a board resolution majority of the Disinterested Members, if any.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of clause (a) of this Section 4.13:
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Restricted Payments that states are permitted by Section 4.9 and the definition of “Permitted Investments” set forth in Section 1.1;
(3) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company;
(4) transactions pursuant to agreements or arrangements in effect on the Issue Date and described in the Offering Memorandum, or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date;
(5) overhead costs and other ordinary course allocations of costs and services on a reasonable basis;
(6) allocations of tax liabilities and other tax related items among the Company and its Affiliates based principally upon the financial income, taxable income, credits and other amounts directly related to the respective parties, to the extent that the share of such liabilities and other items allocable to the Company and its Restricted Subsidiaries shall not exceed the amount that such board has determined that Persons would have been responsible for as a direct taxpayer;
(7) payment of reasonable and customary fees to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the transaction complies with the foregoing provisions. If Company or any Subsidiary thereof;
(8) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any Restricted Subsidiary with officers and employees of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess any Subsidiary thereof and the payment of $30.0 million, then prior compensation to the consummation officers and employees of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as or any Subsidiary thereof (including amounts paid pursuant to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewemployee benefit plans, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:employee stock option or similar plans);
(19) reasonable fees and compensation paid any transaction with respect to and indemnity provided on behalf of officers, directors, employees or consultants of which the Company or any of its Restricted Subsidiaries Subsidiaries, as reasonably determined in good faith the case may be, delivers to the Trustee an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such transaction or series of related transactions is fair to the Company’s Board Company or such Restricted Subsidiary from a financial point of Directors or a senior officer of the Companyview;
(210) transactions exclusively between with customers, clients, suppliers, or among the Company and any purchasers or sellers of its Restricted Subsidiaries goods or exclusively between or among such Restricted Subsidiariesservices, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, Indenture which are fair to the Company and its Restricted Subsidiaries, taken as a wholein the reasonable determination of senior management of the Company, or are on terms no less at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(11) any transaction that is effected as part of a receivables financing permitted pursuant to Section 4.10(b)(1) which is fair to the Company and its Restricted Subsidiaries, taken as a whole, than in the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board reasonable determination of Directors or a senior officer management of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Sources: Indenture (Sealed Air Corp/De)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $5.0 million (each, an “Affiliate Transaction”), other thanunless:
(ai) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms terms, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and an unrelated Person. The Board of Directors or a senior officer of when such transaction is taken in its entirety; and
(ii) the Company must approve each delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 35.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a board resolution majority of the disinterested members of the Board of Directors of the Company or the Company’s Conflicts Committee (or other committee serving a similar function).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company);
(ii) transactions between or among any of the Company and its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that states is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person;
(iv) transactions effected in accordance with (a) the terms of agreements or arrangements in effect on the Issue Date, including the Services Agreement, the Partnership Agreement in the form attached as Exhibit B to the Contribution Agreement and the other agreements governing the Transactions, (b) any amendment or replacement of any of such agreements or (c) any agreements entered into hereafter that are similar to any of such board has determined agreements, so long as, in the case of clause (b) or (c), the terms of any such amendment or replacement agreement or future agreement are, on the whole, either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (a), respectively;
(v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the transaction complies Affiliate is treated no more favorably than other holders of such Indebtedness;
(vii) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(viii) payments to the General Partner with respect to reimbursement for expenses in accordance with the foregoing provisions. If Partnership Agreement in the form attached as Exhibit B to the Contribution Agreement and as it may be amended, modified or supplemented from time to time, so long as any such amendment, modification or supplement is no less favorable to the Company in any material respect than the agreement prior to such amendment, modification or supplement;
(ix) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the Company enters into an Affiliate Transaction that involves aggregate payments benefit of lenders or other assets with a fair market value creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (9) of the definition of “Permitted Liens” so long as any such transaction described in this clause (b), if involving aggregate consideration in excess of $30.0 50.0 million, then prior to has been approved by a majority of the consummation disinterested members of that Affiliate Transactionthe Board of Directors of the Company or the Conflicts Committee of the Company;
(x) transactions between the Company and any Person, a director of which is also a director of the General Partner or, if applicable, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of viewCompany, and deliver that opinion such common director is the sole cause for such other Person to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants be deemed an Affiliate of the Company or any of its Restricted Subsidiaries Subsidiaries; provided, however, that such director abstains from voting as reasonably determined in good faith by the Company’s Board of Directors or a senior officer director of the CompanyGeneral Partner or, if applicable, the Company on any matter involving such other Person;
(2xi) transactions exclusively between or among any transaction in which the Company and or any of its Restricted Subsidiaries Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or exclusively between or among such Restricted Subsidiaries, provided Subsidiary from a financial point of view or that such transactions are not otherwise prohibited by any provision contained in this Indenture;transaction meets the requirements of clause (i) of Section 4.11(a); and
(3xii) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariescase of contracts for supplies, on the one handraw materials, and the Affiliate Guarantorsinventory or other goods or services or activities reasonably related or ancillary thereto, on the otheror other operational contracts, any such contracts are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries Restricted Subsidiary and unrelated third parties, or if neither the Company nor any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided then the terms are no less favorable than those that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fallwould reasonably be expected to be available from third parties on an arm’s-Away Eventlength basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will (a) Holdings shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any in one transaction or a series of related transactions transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, of any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate payments or consideration to or from Holdings or a Restricted Subsidiary in excess of $5.0 million, other thanunless:
(a1) the terms of such Affiliate Transaction or series of related Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions on terms that are no not materially less favorable to Holdings or such Restricted Subsidiary, as the Company or the relevant Restricted Subsidiary case may be, than those terms that would could reasonably be expected to have been obtained at that time in a comparable transaction by at the Company time of such transaction in arm’s length dealings with a Person who is not such an Affiliate, or if in the relevant good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction or series of related Affiliate Transactions, or are otherwise fair to Holdings or such Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and ; and
(2) the Issuers deliver that opinion to the Trustee. , (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value in excess of $20.0 million, an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with Section 4.11(a)(1) and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate value in excess of $40.0 million, an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with Section 4.11(a)(1) and which sets forth and authenticates a resolution that has been approved by a majority of the disinterested members of the Board of Directors of Holdings.
(b) The foregoing restrictions described in the preceding paragraphs of this Section 4.12 do shall not apply to:
(1) transactions to the extent between or among (a) Holdings and one or more Restricted Subsidiaries or a Person that becomes a Restricted Subsidiary as a result of such transaction or (b) Restricted Subsidiaries;
(2) employment agreements, equity awards, compensation plans, deferred compensation plans, severance agreements and arrangements, director, trustee, officer and employee compensation (including bonuses) and other benefits (including pursuant to any employment agreement or any retirement, health, stock option or other benefit plan), payments of fees, reasonable fees out-of-pocket costs and compensation paid indemnities to and indemnity provided on behalf of employees, officers, directors, employees or directors and consultants of the Company Holdings or any of its Restricted Subsidiaries and indemnification arrangements, including any other compensation plans, agreements or arrangements, benefit plans, retirement plans, savings plans, vacation plans and directors and officers insurance arrangements entered into by Holdings or any Restricted Subsidiary in the ordinary course of business and payments pursuant thereto, in each case, as reasonably determined in good faith by the Company’s Holdings’ Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenturemanagement;
(3) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership, in each case, as determined in good faith by Holdings’ Board of Directors or senior management;
(4) Permitted Investments or Restricted Payments which are made in accordance with the covenant described under Section 4.7;
(5) any agreement in effect on the Issue Date as in effect on such date (and performance thereunder) or as thereafter amended or replaced in any manner that, taken as a manner whole, is not materially less favorable advantageous to Holdings than such agreement as it was in effect on the Holders of Notes in the aggregateIssue Date;
(46) transactions between the Company and/or any transaction with a Person (other than an Unrestricted Subsidiary of Holdings) which would constitute an Affiliate of Holdings solely because Holdings or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(7) loans or advances to officers, directors, consultants and employees of Holdings or its Restricted SubsidiariesSubsidiaries that are Permitted Investments;
(8) transactions with customers, on the one handclients, and the Affiliate Guarantorssuppliers or purchasers or sellers of goods or services, on the other, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Board of Directors or the senior management of Holdings, such transactions are on terms not materially less favorable to Holdings or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Holdings;
(59) transactions with Restricted Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business;
(a10) the issuance, sale or transfer of any Qualified Equity Interests of Holdings and the granting of registration and other customary rights in connection therewith to, or the receipt of capital contributions from, Affiliates of Holdings;
(11) any transaction where the only consideration paid by Holdings or the relevant Restricted Subsidiary is Qualified Equity Interests of Holdings;
(12) any purchase by any direct or indirect parent (other than Holdings) of the Equity Interests of Holdings and the purchase by Holdings of Equity Interests in any Restricted Subsidiary;
(13) transactions between Holdings or any Restricted Subsidiary and any Person, a director of which is also a director of Holdings or any direct or indirect parent company of Holdings, and such director is the Company sole cause for such Person to be deemed an Affiliate of Holdings or any Restricted Subsidiary; provided, however, that such director shall abstain from voting as a director of Holdings or such direct or indirect parent company, as the case may be, on any matter involving such other Person;
(14) the entering into of a tax sharing agreement, or payments pursuant thereto, between Holdings and/or its Restricted one or more Subsidiaries, on the one hand, and Subsidiaries any other applicable Person;
(15) transactions with respect to which Holdings or a Restricted Subsidiary delivers to the Trustee a letter from an independent investment bank, appraisal firm, valuation firm or accounting firm stating that the transaction is fair to Holdings or such Restricted Subsidiary, as the case may be, from a financial point of Mosaic that are not Affiliate Guarantorsview or otherwise complies with the standard in Section 4.11(a)(1);
(16) pledges by Holdings or a Restricted Subsidiary of Equity Interests of an Unrestricted Subsidiary for the benefit of lenders or other creditors of the Unrestricted Subsidiary;
(17) transactions with customers, on the otherclients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business, business and (b) transactions of the type set forth otherwise in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets compliance with a fair market value in excess of $5.0 million, the terms of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), taken not materially less favorable to Holdings and the Restricted Subsidiaries than those that would have been obtained in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated person, as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a wholedetermined in good faith by Holdings’ Board of Directors or senior management, or are on terms no less at least as favorable to Holdings or the Company relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of Holdings;
(18) payments or loans (or cancellation of loans) to employees or consultants that are: (a) approved by a majority of the disinterested directors of Holdings or the Issuers in good faith; (b) made in compliance with applicable law; and (c) otherwise permitted by this Indenture;
(19) the existence of, or the performance by any of Holdings, the Issuers or a Restricted Subsidiary of its Restricted Subsidiaries, taken as a whole, than obligations under the terms of, any customary registration rights agreement to which reasonably would have been obtained from an unrelated party, such entity is a party or becomes a party in each case, as is reasonably determined the future;
(20) intercompany transactions undertaken in good faith (as certified by an Officer of Holdings) for the Board purpose of Directors or a senior officer improving the consolidated tax efficiency of Holdings and the CompanyRestricted Subsidiaries as permitted by this Indenture;
(621) Investments by Affiliates in securities of Holdings or any Restricted Subsidiary (so long as the Investment is being generally offered to other investors on the same or more favorable terms), any participation in a Phosphates Combination Transaction;
(7) the issuance of a guarantee tender or exchange offer for securities or debt instruments issued by the Company and/or Holdings or any of its Restricted Subsidiaries with that are conducted on arm’s-length terms and provide for the same price or exchange, as the case may be, to all holders accepting such tender or exchange offer, and payments to an Affiliate in respect to any of notes, capital stock or Indebtedness of Holdings or any Affiliate Guarantor, Restricted Subsidiary on the same basis as concurrent payments made or offered in respect thereof to the extent permitted by Section 4.08non-Affiliates;
(8) Permitted Investments 22) central services (including, without limitation, management information systems, pension and profit sharing plans and human resources) provided by Holdings or any Restricted Payments made in compliance with Section 4.09 of this IndentureSubsidiary to any Affiliates;
(923) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureReceivables Financings; and
(1024) dividends and distributions to Holdings and the Restricted Subsidiaries by any transaction of the type set forth in clause (7) Unrestricted Subsidiary or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventjoint venture.
Appears in 1 contract
Sources: Indenture (Venator Materials PLC)
Limitation on Transactions with Affiliates. The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates Holdings (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not less favorable to the Company Holdings or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person or, if in the Company good faith judgment of Holdings’ Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to Holdings or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) Holdings delivers to the TrusteeAdministrative Agent:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $10,000,000, a resolution of the Board of Directors of Holdings set forth in a certificate of a Financial Officer of Holdings certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 6.05 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of Holdings; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $20,000,000, an opinion as to the fairness to Holdings or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to6.05:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or cash or equity settled equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement, consulting agreement or other compensation plan or arrangement entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business or which is customary in the Oil and compensation paid Gas Business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of Holdings and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Holdings) that is an Affiliate of Holdings solely because Holdings owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person or has nominated or appointed a person to the Board of Directors of that Person;
(4) customary compensation, indemnification and indemnity provided on behalf of other benefits made available to officers, directors, employees or consultants of the Company Holdings or a Restricted Subsidiary of Holdings, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) issuances of Equity Interests (other than Disqualified Stock) of Holdings to, or receipt of capital contributions from, Affiliates of Holdings and any dividend or distribution payable in Equity Interests (other than Disqualified Stock) of Holdings;
(6) any Permitted Investments or Restricted Payments that are permitted by Section 6.01;
(7) transactions between Holdings or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of Holdings or such Restricted Subsidiary, as reasonably determined in good faith by the Company’s Board applicable; provided that such director abstains from voting as a director of Directors Holdings or a senior officer of the Companysuch Restricted Subsidiary, as applicable, on any matter involving such other Person;
(2) transactions exclusively between 8) the existence of, and the performance of obligations of Holdings or among the Company and any of its Restricted Subsidiaries under the terms of, any written agreement to which Holdings or exclusively between any of its Restricted Subsidiaries is a party on the date of this Agreement, as such agreements may be amended, modified, supplemented or among such Restricted Subsidiariesreplaced from time to time; provided, provided such transactions however, that any amendment, modification, supplement or replacement entered into after the date of this Agreement will be permitted to the extent that its terms are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement materially more disadvantageous, taken as a whole, to the Lenders than the terms of the agreements in effect on the Issue Date date of this Agreement (as in effect on conclusively evidenced by a Board Resolution of Holdings or such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateSubsidiary);
(49) transactions between the Company and/or any transaction in which Holdings or any of its Restricted Subsidiaries, on as the one handcase may be, and delivers to the Affiliate GuarantorsAdministrative Agent an opinion from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view or that such transaction meets the other, requirements of clause (1) of the preceding paragraph of this Section 6.05;
(10) (a) guarantees by Holdings or any of its Restricted Subsidiaries of performance of obligations of Holdings’ Unrestricted Subsidiaries in the ordinary course of business or which are customary in the Oil and Gas Business and (b) pledges by Holdings or any Restricted Subsidiary of Holdings of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Holdings’ Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of Holdings or any Restricted Subsidiary of Holdings if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of Holdings or such Restricted Subsidiary;
(12) transactions with joint venture partners, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business or which are customary in the Oil and Gas Business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Agreement similar to those contained in similar contracts entered into by Holdings or any Restricted SubsidiariesSubsidiary and unrelated third parties, on the one handor if neither Holdings nor any Restricted Subsidiary has entered into a similar contract with an unrelated third party, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherwhich are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair not materially less favorable to the Company Holdings and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated third party, in each case, as is reasonably determined in the good faith by the determination of Holdings’ Board of Directors or a senior any executive officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries Holdings involved in or otherwise familiar with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturetransaction; and
(1013) dividends and distributions to Holdings and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventUnrestricted Subsidiary.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or primarily for the benefit of, any of its their Affiliates (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $2,500,000, other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company or any Restricted Subsidiary; and
(ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10,000,000, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.13 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the Disinterested Members (or a committee of the Board of Directors all the members of which who participate in such approval are Disinterested Members); and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25,000,000, an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such Affiliate Transaction or series of related Affiliate Transactions is fair to the Company or such Restricted Subsidiary from a financial point of view or its terms are not materially less favorable to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or than those that would have been obtained in a senior officer of comparable arm’s-length transaction by the Company must approve each Affiliate Transaction that involves aggregate payments or other assets such Restricted Subsidiary with a fair market value in excess Person that is not an Affiliate of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Subsidiary.
(b) The following items shall not be deemed to be Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior Transactions and shall not be subject to the consummation provisions of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to4.13(a) above:
(1i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees transactions between or consultants of among the Company or any of and/or its Restricted Subsidiaries as reasonably determined in good faith Subsidiaries;
(ii) any Permitted Investments or Restricted Payments that are permitted by the Company’s Board provisions of Directors this Indenture described under Section 4.09 hereof;
(iii) any issuance or a senior officer sale of Equity Interests (other than Disqualified Stock) of the Company;
(2iv) transactions exclusively between pursuant to agreements or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement arrangements in effect on the Issue Date and described in the Offering Memorandum, or any amendment, modification or supplement thereto or replacement thereof, as in effect on long as such date agreement or arrangement, as thereafter amended in so amended, modified, supplemented or replaced, taken as a manner whole, is not materially less favorable more disadvantageous to the Holders of Notes Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the aggregateIssue Date;
(4v) payments by the Company (and any direct or indirect parent thereof) and its Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent) and its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(vi) loans or advances to directors, employees and consultants of the Company and its Subsidiaries made in the ordinary course of business in an aggregate amount not to exceed $10,000,000 at any one time outstanding (or as otherwise permitted by clause (vii) below);
(vii) payroll, travel and similar advances, in each case made in the ordinary course of business;
(viii) the payment of fees to directors of the Company or any Subsidiary who are not employees of the Company or any Subsidiary;
(ix) any issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership plans approved by the Board of Directors of the Company;
(x) transactions with any Affiliate in their capacity as a holder of Indebtedness or Equity Interests; provided that such Affiliate owns (either alone or together with other Affiliates) less than a majority of the interests of the relevant class, does not participate in the Company’s decision to enter into any such transaction, and is treated no more favorably than the other holders;
(xi) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Investment in, or controls, such Person;
(xii) employment, consulting, service, indemnification and severance arrangements entered into in the ordinary course of business between the Company and/or its Restricted Subsidiariesor any Subsidiary of the Company, on the one hand, and the Affiliate Guarantorsany director, employee or consultant thereof, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one other hand, and Subsidiaries the payment of Mosaic that are not Affiliate Guarantorscompensation to such directors, on the otheremployees and consultants (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) entered into in the ordinary course of business, and (b) transactions consistent with past practice or approved by the Board of Directors of the type set forth Company; and
(xiii) any transaction in clause (6) respect of which the Company delivers to the Trustee an opinion issued by an independent accounting, appraisal or (7) investment banking firm of the second paragraph of Section 4.09; provided national standing stating that in the case of any such transaction Affiliate Transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are Affiliate Transactions is fair to the Company and its or such Restricted Subsidiaries, taken as Subsidiary from a whole, financial point of view or are on terms no is not materially less favorable to the Company and its or the relevant Restricted Subsidiaries, taken as a whole, Subsidiary than the terms which reasonably those that would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee comparable arm’s length transaction by the Company and/or any of its or such Restricted Subsidiaries Subsidiary with respect to any Indebtedness of any a Person that is not an Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventRestricted Subsidiary.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will shall not, and will shall not permit permit, cause or suffer any of its Restricted Subsidiaries Subsidiary to, directly conduct any business or indirectly, enter into or permit to exist any transaction or series of related transactions with(including the purchase, sale, lease or exchange of any property or the rendering of any service) with or for the benefit of, of any Affiliate of its Affiliates the Company or any Subsidiary (each, each an “"Affiliate Transaction”"), other than
(a) Affiliate Transactions described except in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions good faith and on terms that are set forth in writing and that are no less favorable to the Company or such Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably could have been obtained at that time in a comparable transaction by on an arm's-length basis from a person not an Affiliate of the Company or the relevant Restricted Subsidiary such Subsidiary. All Affiliate Transactions (and an unrelated Person. The Board each series of Directors related Affiliated Transactions which are similar or part of a senior officer of the Company must approve each Affiliate Transaction that involves common plan), involving aggregate payments or other assets with a fair market value in excess of $15.0 million. This 100,000 shall be approved by the Board of Directors, such approval must to be evidenced by a board resolution Board Resolution stating that states that such board the Board of Directors has determined that the such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12. Notwithstanding the foregoing, the restrictions set forth in this Section 4.12 do shall not apply to:
to (1i) the payment of reasonable and customary directors fees and compensation paid to and indemnity provided on behalf directors who are not employees of officersthe Company, directors, employees (ii) the purchase of property or consultants services from an Affiliate of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith Subsidiary by the Company’s Board Company or any Subsidiary or sales of Directors property or a senior officer services to an Affiliate of the Company;
(2) transactions exclusively between Company or among any Subsidiary by the Company and or any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions Subsidiary which are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise consistent with past practice and do not involve aggregate payments or other value in compliance with the terms excess of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, $100,000 in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such a single transaction or series of related transactions of the type set forth in (a) transactions, or (biii) that involves aggregate payments the performance by the Company of its obligations under the Registration Effectiveness Agreement or other assets with a fair market value in excess the Securities Purchase Agreement dated as of $5.0 millionMay 14, the terms of such transactions, taken as a whole, are fair to 1993 by and among the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable the investment manager of certain funds named therein. Anything contained in this Indenture to the contrary notwithstanding, the Company shall not, and its Restricted Subsidiariesshall not permit any Subsidiary to, taken as a whole, than engage in any Affiliate Transaction with or for the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer benefit of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventInactive Subsidiaries.
Appears in 1 contract
Sources: Indenture (Town & Country Corp)
Limitation on Transactions with Affiliates. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other than
unless: 107920296 63 (a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Parent or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Parent, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Parent or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, ; and deliver that opinion (2) the Parent delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.10 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to:
4.10: (1) reasonable fees and compensation paid to and indemnity provided on behalf any transaction or series of officersrelated transactions involving aggregate consideration of less than $10.0 million; (2) any employment, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company Parent or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and ; (b3) transactions between or among any of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company Parent and its Restricted Subsidiaries; (4) transactions with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns an Equity Interest in such Person; (5) transactions effected in accordance with the terms of agreements that are identified or incorporated by reference in the Purchase and Exchange Agreement dated as of the Initial Issuance Date, taken by and among the Issuers, the Parent and the purchasers party thereto, as such agreements are in effect on the Initial Issuance Date, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is, in the good faith judgment of a wholeresponsible Officer of the General Partner, or are on terms no less favorable advantageous to the Company and its Restricted Subsidiaries, taken as a whole, Parent in any material respect than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors agreement so amended or a senior officer of the Company;
replaced; (6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Parent or a Phosphates Combination Transaction;
Restricted Subsidiary or Affiliate of the Parent, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (7) the issuance sales of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect Equity Interests (other than Disqualified Stock) to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any Affiliates of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.Parent;
Appears in 1 contract
Sources: Indenture Agreement (Summit Midstream Partners, LP)
Limitation on Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into into, make, amend, renew or permit to exist extend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or primarily for the benefit of, any of its their Affiliates (each, an “Affiliate Transaction”), other thanunless:
(ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on fair and reasonable terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable arm’s-length transaction by the Company or the relevant such Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess Person that is not an Affiliate of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of Subsidiary; and
(ii) the Company enters into an delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.13 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the Disinterested Members; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20,000,000, an opinion issued by an independent accounting, appraisal or investment banking firm of national standing stating that such Affiliate Transaction is fair to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes or such Restricted Subsidiary from a financial point of view, .
(b) The following items shall not be deemed to be Affiliate Transactions and deliver that opinion shall not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to4.13(a) above:
(1i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees transactions between or consultants of among the Company or any of and/or its Restricted Subsidiaries as reasonably determined in good faith Subsidiaries;
(ii) Restricted Payments that are permitted by the Company’s Board provisions of Directors this Indenture described under Section 4.09 hereof;
(iii) any issuance or a senior officer sale of Equity Interests (other than Disqualified Stock) of the Company;
(2iv) transactions exclusively between pursuant to agreements or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement arrangements in effect on the Issue Date or any amendment, modification or supplement thereto or replacement thereof, as in effect on long as such date agreement or arrangement, as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariesso amended, on the one handmodified, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) supplemented or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactionsreplaced, taken as a whole, are fair is not materially more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or arrangement in existence on the Issue Date;
(v) payments by the Company (and any direct or indirect parent thereof) and its Restricted Subsidiaries, taken as a whole, Subsidiaries pursuant to tax sharing agreements among the Company (and any such parent) and its Subsidiaries on customary terms to the extent attributable to the ownership or are on terms no less favorable to operation of the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, ; provided that in each case, as is reasonably determined case the amount of such payments in good faith by any fiscal year does not exceed the Board of Directors or a senior officer of amount that the Company, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Company and its Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity;
(6vi) a Phosphates Combination Transaction;
(7) the issuance payment of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantorreasonable and customary fees to, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Company or any Subsidiary thereof;
(vii) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any Restricted Subsidiaries with officers and employees of its Subsidiaries the Company or any Subsidiary thereof, and the payment of compensation to officers and employees of the Company or any Securitization Entity in connection with Subsidiary thereof (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment has been approved by a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturemajority of the Disinterested Members; and
(10viii) additional affiliation agreements and/or joint sale agreements with Univision, any transaction purchase or sale by Univision of the type Company’s Capital Stock and/or any other agreements or arrangements entered into with Univision in connection with the conduct of the Company’s businesses; provided that for any such other agreement or arrangement that (i) is outside of the Company’s ordinary course of conduct, including conduct that is not inconsistent with the Company’s past practice, and (ii) involves aggregate consideration in excess of $10,000,000, the Company will deliver to the Trustee a Board Resolution set forth in clause (7) or (8) of an Officers’ Certificate certifying that such transaction is fair and reasonable to the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventCompany.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thaninvolving aggregate payments or consideration in excess of $1 million, unless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with a Person that is not an unrelated Person. The Board of Directors or a senior officer Affiliate of the Company; and
(2) the Company must approve each delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25 million. This approval must be evidenced by , a board resolution that states that such board has determined that of the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary Board of Directors of the Company enters into set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section and that involves such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 50 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Restricted Subsidiary of that such Affiliate Transaction to the Holders or series of Notes related Affiliate Transactions from a financial point of viewview issued by an accounting, and deliver that opinion appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trustee. The restrictions described in the preceding paragraphs provisions of this Section 4.12 do not apply to:paragraph (a):
(1) any employment, consulting or similar agreement or arrangement, stock option or stock ownership plan, employee benefit plan, officer or director indemnification agreement, restricted stock agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;
(4) reasonable fees and expenses and compensation paid to to, and indemnity or insurance provided on behalf of of, officers, directorsdirectors or employees of the Company or any of its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to, or receipt of a capital contribution from, Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07 or any Permitted Investments;
(7) loans or advances to employees in the ordinary course of business or consultants consistent with past practice;
(8) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;
(9) the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any written agreement to which the Company or any of its Restricted Subsidiaries was a party on the Issue Date, as reasonably these agreements may be amended, modified or supplemented from time to time; provided, however, that any future amendment, modification or supplement entered into after the Issue Date will be permitted to the extent that its terms do not materially and adversely affect the rights of any Holders of the Notes (as determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among as compared to the Company and any terms of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement the agreements in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateDate;
(410) (A) guarantees of performance by the Company and its Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of business, except for Guarantees of Indebtedness in respect of borrowed money, and (B) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(11) transactions between the Company and/or its or any Restricted SubsidiariesSubsidiary and any Person, a director of which is also a director of the Company or any direct or indirect parent company of the Company and such director is the sole cause for such Person to be deemed an Affiliate of the Company or any Restricted Subsidiary; provided, however, that such director abstains from voting as director of the Company or such direct or indirect parent company of the Company, as the case may be, on the one handany matter involving such other Person; and
(12) transactions with customers, and the Affiliate Guarantorsclients, on the othersuppliers, or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business and otherwise in compliance with the terms of this the Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions reasonable determination of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess Board of $5.0 million, the terms Directors of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiariesor the senior management of the Company, taken as a whole, or such transactions are on terms no not materially less favorable to the Company and its or the relevant Restricted Subsidiaries, taken as Subsidiary than those that could reasonably be expected to be obtained in a whole, than the terms which reasonably would have been obtained comparable transaction at such time on an arm’s-length basis from a Person that is not an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer Affiliate of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Sources: Indenture (PDC Energy, Inc.)
Limitation on Transactions with Affiliates. The Company (a) Parent Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guaranty with, or for the benefit of, any Affiliate of its Affiliates Parent Issuer (each, each an “Affiliate Transaction”)) except as disclosed on Schedule 4.18, other thanunless:
(a) 1. the Affiliate Transaction is, or series of Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions are, on terms that are no less favorable to the Company Parent Issuer or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Parent Issuer or the relevant Restricted such Subsidiary and with an unrelated PersonPerson on an arms length basis;
2. The Parent Issuer delivers to each of the Holders a resolution of the Board of Directors or of Parent Issuer set forth in an Officers Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that such Affiliate Transaction has been approved by a senior officer majority of the Company must approve each independent members of the Board of Directors of Parent Issuer; provided that such Officers Certificate shall only be required in connection with an Affiliate Transaction that involves aggregate payments or other assets with a fair market value series of Affiliate Transactions in excess of $15.0 million5,000,000; and
3. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness fairness, to Parent Issuer or such Subsidiary, of that such Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion issued by an accounting, valuation, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trusteeprovisions of Section 5.17(a) hereof:
1. The restrictions described transactions between or among any Guarantors;
2. reasonable and customary salaries and fees paid to members of the Boards of Directors and officers of Parent Issuer and its Subsidiaries;
3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of Parent Issuer and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into; or
4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the preceding paragraphs ordinary course of business, including, without limitation, in connection with any employment agreements or benefits arrangements between Parent Issuer and any of its Subsidiaries with employees.
(c) Notwithstanding any other provision of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers5.17, directors, employees any transactions between or consultants of the Company among Parent Issuer or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted SubsidiariesAffiliates, on the one hand, and the Affiliate Guarantors, any Purchaser or Holder (or their representatives) on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one other hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transactionthe Notes, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) First Lien Notes or (8) of the definition of “Asset Sale”. This Section 4.12 Second Lien Notes will be deemed an Affiliate Transaction but will not apply after be subject to the Fall-Away Eventprovisions of Section 5.17(a)(3).
Appears in 1 contract
Sources: Second Lien Subordinated Note Purchase Agreement (NextWave Wireless Inc.)
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by the Conflicts Committee or a majority of the disinterested members of the Board of Directors. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any transaction or series of related transactions involving aggregate consideration of less than $10.0 million;
(2) any employment, equity award, equity option or equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(3) transactions between or among any of the Company and compensation paid its Restricted Subsidiaries;
(4) transactions with a Person that is an Affiliate of the Company (other than an Unrestricted Subsidiary) solely because the Company owns an Equity Interest in such Person;
(5) transactions effected in accordance with the JPE Merger Agreement or other agreements that are identified or incorporated by reference in the Offering Memorandum, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company and indemnity provided on behalf its Restricted Subsidiaries in any material respect than the agreement so amended or replaced;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(8) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(9) payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the date of this Indenture and as it may be amended, directorsprovided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment;
(10) transactions between the Company or any of its Restricted Subsidiaries and any other Person, employees a director of which is also on the Board of Directors of the Company or consultants any direct or indirect parent company of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries Subsidiaries; provided, however, that such director abstains from voting as reasonably determined in good faith by a member of the Company’s Board of Directors of the Company or a senior officer any direct or indirect parent company of the Company;, as the case may be, on any transaction with such other Person; and
(211) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariescase of contracts for gathering, on the one handtransporting, and the Affiliate Guarantorstreating, on the otherprocessing, fractionating, refining, marketing, distributing, storing, terminalling, purchasing, selling, blending or otherwise handling Hydrocarbons or other products, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries Restricted Subsidiary and third parties, or if neither the Company nor any Securitization Entity in connection Restricted Subsidiary has entered into a similar contract with a Qualified Securitization Transactionthird party, in each case, provided that such transactions then the terms are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventno less favorable than those available from third parties on an arm’s length basis.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) either: (a) the Company must approve each delivers to the Trustee, with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million but no greater than $75.0 million. This approval must be evidenced by a board resolution that states , an Officers’ Certificate certifying that such board has determined that the transaction Affiliate Transaction or series of Affiliate Transactions complies with the foregoing provisions. If this covenant; or (b) the Company or delivers to the Trustee, with respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 75.0 million, then prior an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the consummation provisions of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company’s ) that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(4) transactions effected in accordance with the terms of (a) the Omnibus Agreement, (b) corporate sharing agreements with the Partnership and its Subsidiaries with respect to general overhead and other administrative matters or (c) other agreements that are identified in Schedule I to this Indenture, in each case as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is either (i) approved by a majority of the disinterested members of the Board of Directors of the Company or (ii) not materially more disadvantageous, taken as a whole, to the Company and its Restricted Subsidiaries than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a senior officer Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;
(27) transactions exclusively between Permitted Investments or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions Payments that are not otherwise prohibited permitted by any provision contained in this Indenture;Section 4.07; and
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes 8) in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiariescase of contracts for buying and selling or leasing equipment or inventory or other operational contracts, on the one hand, and the Affiliate Guarantors, on the other, any such contracts are entered into in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable substantially similar to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, those contained in each case, as is reasonably determined in good faith similar contracts entered into by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Restricted Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventunrelated third parties.
Appears in 1 contract
Sources: Indenture (Exterran Holdings Inc.)
Limitation on Transactions with Affiliates. The Company will not, and will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, conduct any business or enter into or permit suffer to exist any transaction or series of related transactions with, or for the benefit of, any of its their respective Affiliates or any beneficial holder of 10% or more of any class of Voting Stock of the Company or any officer or director of the Company or any Restricted Subsidiary (each, an “"Affiliate Transaction”"), other than
unless (ai) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary Subsidiary, as the case may be, than those terms that would reasonably which could have been obtained at that time in a comparable transaction by at such time from Persons who do not have such a relationship and (ii) with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments or value equal to or greater than $5.0 million, the Company shall have delivered an Officers' Certificate to the Trustee certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with the relevant Restricted Subsidiary and an unrelated Person. The preceding clause (i) and, with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments or value equal to or greater than $10.0 million, further certifying that such Affiliate Transaction or series of Affiliate Transactions has been approved by a majority of the Board of Directors or a senior officer of the Company, including a majority of the disinterested directors of the Board of Directors of the Company. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or among the Company must approve each Affiliate Transaction that involves aggregate payments and the Restricted Subsidiaries who are Guarantors; (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or other assets employment agreements, compensation or employee benefit arrangements and incentive arrangements with a fair market value in excess any officer, director or employee of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary entered into in the ordinary course of business (including customary benefits thereunder) and payments under any indemnification arrangements permitted by applicable law; (iii) the issue and sale by the Company enters into an Affiliate Transaction that involves aggregate payments or to its stockholders of Capital Stock (other assets than Redeemable Capital Stock); (iv) any dividends made in compliance with a fair market value in excess of $30.0 million, then prior Section 10.14 above; (v) loans and advances to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or and consultants of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
business; (2vi) transactions exclusively between with or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, Accounts Receivable Subsidiary made in the ordinary course of business and otherwise in compliance with transactions related to any proprietary credit card issued by or for the terms benefit of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on or an Affiliate of the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, Company in the ordinary course of business, ; (vii) any agreement or Affiliate Transactions as in effect on the Issue Date and any transaction contemplated thereby; and (bviii) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to tax sharing agreements between the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries providing for the payment by such Subsidiary of an amount equal to the hypothetical United States tax liability of the Subsidiary as if such Subsidiary had filed its own U.S. federal tax return for any given taxable year. After the Notes have been assigned an Investment Grade Rating by both Rating Agencies, and any Securitization Entity in connection with a Qualified Securitization Transactionnotwithstanding that the Notes may later cease to have an Investment Grade Rating, in each case, the Company and the Restricted Subsidiaries will not be subject to the provisions of this Section; provided that no Default has occurred and is continuing at the time the Notes have been assigned such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Eventrating.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5 million, other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of the Company must approve each ; and
(2) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 15 million. This approval must be , a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction) have determined in good faith that the criteria set forth in the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a board resolution that states that such board has determined that Board Resolution. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any transaction complies with the foregoing provisions. If Company, a Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(2) Restricted Payments and Permitted Investments permitted by this Indenture;
(3) the payment to the Sponsor and, any of its officers or Affiliates by the Company or any of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination payments and related reasonable expenses pursuant to (A) the Management Agreement as in effect on the Issue Date or any amendment thereto (so long as any such amendment is not less advantageous to the Holders of the Notes in any material respect than the Management Agreement) or (B) other agreements as in effect on the Issue Date that were entered into in connection with the Acquisition Transactions and as in effect on the Issue Date or any amendment thereto (so long as any such amendment is not less advantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date);
(4) the payment of reasonable compensation and fees to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies, or any Restricted Subsidiary, as determined in good faith by the Board of Directors of the Company or senior management thereof;
(5) payments made by the Company or any Restricted Subsidiary to the Sponsor for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Company enters into an (and, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such Affiliate Transaction that involves aggregate payments Transaction) in good faith;
(6) transactions in which the Company or other assets with a fair market value in excess of $30.0 million, then prior any Restricted Subsidiary delivers to the consummation of that Affiliate Transaction, the Company must obtain Trustee a favorable opinion letter from an Independent Financial Advisor as stating that such transaction is fair to the fairness of that Affiliate Transaction to the Holders of Notes Company or such Restricted Subsidiary from a financial point of view, and deliver that opinion to view or meets the Trustee. The restrictions described in requirements of clause (1) of the preceding paragraphs first paragraph of this Section 4.12 do not apply to:4.11;
(17) reasonable fees and compensation paid payments or loans (or cancellations of loans) to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiaries as reasonably determined in good faith Subsidiary which are approved by the Company’s Board of Directors or a senior officer of the CompanyCompany and which are otherwise permitted under this Indenture, but in any event not to exceed $10 million in the aggregate outstanding at any one time;
(2) transactions exclusively between 8) payments made or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) performance under any agreement as in effect on the Issue Date (other than the Management Agreement and LLC Agreement (which are permitted under clause (3) and clause (9) of the second paragraph of this Section 4.11), but including, without limitation, each of the other agreements entered into in connection with the Acquisition Transactions);
(9) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the LLC Agreement; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to the LLC Agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (9) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to Holders of the Notes in any material respect than the original agreement as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregateIssue Date;
(410) transactions between the Company and/or with customers, clients, suppliers, or purchasers or sellers of goods or services (including Parent and its Restricted Subsidiaries), on the one hand, and the Affiliate Guarantors, on the other, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic Indenture that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and or its Restricted Subsidiaries, taken as a wholein the reasonable determination of the members of the Board of Directors of the Company or the senior management thereof, or are on terms no less at least as favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which would reasonably would have been obtained from entered into at such time with an unrelated unaffiliated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(611) a Phosphates Combination Transaction;
(7) if otherwise permitted hereunder, the issuance of a guarantee by Equity Interests (other than Disqualified Stock) of the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of Permitted Holder, any Affiliate Guarantordirector, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any officer, employee or consultant of the Company or any of its Subsidiaries and or any other Affiliates of the Company (other than a Subsidiary);
(12) any transaction permitted by Section 5.1;
(13) any transaction with a Securitization Entity in connection with Subsidiary effected as part of a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this IndentureFinancing; and
(1014) any transaction the application of the type set forth in clause (7) or (8) proceeds of the definition Notes as described in the “Use of “Asset Sale”. This Section 4.12 will not apply after Proceeds” section in the Fall-Away EventOffering Memorandum.
Appears in 1 contract
Sources: Indenture (Yankee Holding Corp.)
Limitation on Transactions with Affiliates. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions with(including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of, of any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”other than the Company or a Restricted Subsidiary), other thanincluding any Person that becomes a Restricted Subsidiary as a result of such transaction) unless:
(a1) Affiliate Transactions described in the last paragraph such transaction or series of this Section 4.12; and
(b) Affiliate Transactions related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those terms that would reasonably have been obtained at that time be available in a comparable transaction by the Company or the relevant Restricted Subsidiary and in arm's-length dealings with an unrelated Person. The Board third party,
(2) with respect to any transaction or series of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves related transactions involving aggregate payments or other assets with a fair market value in excess of $15.0 2.5 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from delivers an Independent Financial Advisor as Officers' Certificate to the fairness of Trustee certifying that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions complies with clause (1) above, and
(3) with respect to any transaction or series of the type set forth in (a) or (b) that involves related transactions involving aggregate payments or other assets with a fair market value in excess of $5.0 10 million, either
(a) such transaction or series of related transactions has been approved by a majority of the terms Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such transactionsDisinterested Director, taken as or
(b) the Company delivers to the Trustee a whole, are written opinion of an 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 its or such Restricted SubsidiariesSubsidiary from a financial point of view; provided, taken as a wholehowever, that this provision shall not apply to:
(i) directors' fees, consulting fees, employee salaries, bonuses or are on terms no less favorable to employment agreements, incentive arrangements, compensation or employee benefit arrangements with any officer, director or employee of the Company and its Restricted Subsidiariesor a Subsidiary of the Company, taken as including under any stock option or stock incentive plans, customary indemnification arrangements with officers, directors or employees of the Company or a whole, than Subsidiary of the terms which reasonably would have been obtained from an unrelated partyCompany, in each case, as is reasonably determined case entered into in good faith by the Board ordinary course of Directors or a senior officer of the Companybusiness;
(6ii) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Payments or Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture1009;
(9iii) any Qualified Securitization Transaction;
(iv) any issuance or sale of Qualified Capital Stock of the Company to Affiliates;
(v) transactions between among the Company and/or any Restricted Subsidiary (other than a Securitization Entity) and/or any Related Business 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 (including travel, entertainment and moving expenses) made in compliance with applicable law;
(vii) transactions pursuant to any of the Company Acquisition Agreements or any agreements of Viewpoint and its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indentureeffect on the date the Acquisition is consummated; and
(10viii) any transaction transactions undertaken pursuant to any agreements in existence on the Issue Date or the date the Acquisition is consummated in the case of Viewpoint and its Subsidiaries (as in effect on the Issue Date or the date the Acquisition is consummated in the case of Viewpoint and its Subsidiaries) and any renewals, replacements or modifications of such contracts (pursuant to new transactions or otherwise) on terms no less favorable in any material respect to the Holders of the type set forth Securities than those in clause (7) effect on the Issue Date or (8) the date the Acquisition is consummated in the case of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.Viewpoint and its Subsidiaries;
Appears in 1 contract
Sources: Indenture (Oxford Industries Inc)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any of its Affiliates Affiliate (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would could reasonably be expected to have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors Person or a senior officer of is otherwise fair to the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any and its Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes Subsidiaries from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee. The restrictions described Trustee (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with the preceding paragraphs clause (1) of this Section 4.12 do 5.11 and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $100.0 million, a resolution of the Board of Directors of the General Partner set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with the preceding clause (1) of this Section 5.11 and has been approved by a majority of the disinterested members of the Board of Directors.
(b) The following items will not apply tobe deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.11(a) hereof:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officersany employment agreement or arrangement, directorsequity award, employees equity option or consultants of equity appreciation agreement or plan entered into by the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indentureany payments or awards pursuant thereto;
(5) (a2) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries or among any of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in such Person;
(4) transactions permitted by the terms of (a) the Partnership Agreement with respect to accounting, taken treasury, information technology, insurance and other corporate services, general overhead and other administrative matters and expense reimbursements and (b) any other agreements existing on the date of this Supplemental Indenture, in each case as such agreements are in effect on the date of this Supplemental Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less favorable to the Company than the agreement so amended or replaced;
(5) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company, a Restricted Subsidiary of the Company or the General Partner, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(7) Restricted Payments or Permitted Investments that are permitted by Section 5.07 hereof;
(8) transactions between the Company or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a wholedirector of the Company or such Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(9) in the case of contracts for the provision of gathering, treating or compression services with respect to Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms no substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with unrelated third parties or otherwise on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as Subsidiaries than those that would be available in a whole, than the terms which reasonably would have been obtained from transaction with an unrelated third party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Sources: Third Supplemental Indenture (Access Midstream Partners Lp)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guaranty with, or for the benefit of, any Affiliate of its Affiliates the Company (each, each an “Affiliate Transaction”)) except as disclosed on Schedule 4.18, other thanunless:
(a) 1. the Affiliate Transaction is, or series of Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions are, on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant Restricted such Subsidiary and with an unrelated PersonPerson on an arms length basis;
2. The the Company delivers to each of the Holders a resolution of the Board of Directors or a senior officer of the Company must approve each set forth in an Officers Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 5.17(a) and that involves aggregate payments such Affiliate Transaction has been approved by a majority of the independent members of the Board of Directors of the Company; provided that such Officers Certificate shall only be required in connection with an Affiliate Transaction or other assets with a fair market value series of Affiliate Transactions in excess of $15.0 million5,000,000; and
3. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or respect to any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves or series of Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $30.0 million10,000,000, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable an opinion from an Independent Financial Advisor as to the fairness to the Company or such Subsidiary of that such Affiliate Transaction to the Holders of Notes from a financial point of viewview issued by an accounting, and deliver that opinion valuation, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the Trusteeprovisions of Section 5.17(a) hereof:
1. The restrictions described transactions between or among the Company or any Guarantor;
2. reasonable and customary salaries and fees paid to members of the Boards of Directors and officers of the Company and its Subsidiaries;
3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of the Company and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into; or
4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation and employment arrangements with directors, officers, managers and employees in the preceding paragraphs ordinary course of business, including, without limitation, in connection with any employment agreements or benefits arrangements between the Company and any of its Subsidiaries with employees.
(c) Notwithstanding any other provision of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers5.17, directors, employees any transactions between or consultants of among the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted SubsidiariesAffiliates, on the one hand, and the Affiliate Guarantors, any Purchaser or Holder (or their representatives) on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one other hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transactionthe Notes, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) First Lien Notes or (8) of the definition of “Asset Sale”. This Section 4.12 Exchange Notes will be deemed an Affiliate Transaction but will not apply after be subject to the Fall-Away Eventprovisions of Section 5.17(a)(3).
Appears in 1 contract
Sources: Second Lien Subordinated Note Purchase Agreement (NextWave Wireless Inc.)
Limitation on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (eacheach of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5.0 million, other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or the relevant such Restricted Subsidiary and in arm’s-length dealings with an unrelated Person. The Board of Directors or a senior officer of Person or, if there is no such comparable transaction, on terms that are fair and reasonable to the Company must approve each or such Restricted Subsidiary; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 25.0 million. This approval must be evidenced , an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, in addition to the Officers’ Certificate referred to above in clause (A), a resolution of the Board of Directors of the Company approved by a board resolution that states that such board has determined majority of the disinterested members thereof; provided that the transaction complies requirements of clause (2) above are not applicable to any Affiliate Transactions in the ordinary course of business with an Affiliate engaged in the foregoing provisions. If business of providing helicopter transportation services to the oil and gas industry or helicopter search and rescue services (or a business that is reasonably complementary or related to the foregoing).
(b) The following shall be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.11(a):
(1) any employment agreement, employee benefit plan, any other employee compensation plan or arrangement, officer or director indemnification agreement, severance agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, and payments, awards, grants or issuance of securities pursuant thereto;
(2) transactions between or among the Company and its Restricted Subsidiaries;
(3) Permitted Investments and Restricted Payments that are permitted by the provisions of the Indenture;
(4) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary made in the ordinary course of business and consistent with past practices of the Company enters into and its Restricted Subsidiaries in an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of amount not to exceed $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:2.0 million outstanding at any one time;
(15) reasonable fees customary compensation, indemnification and compensation paid other benefits made available to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person;
(7) any transaction in which the Company or any of its Restricted Subsidiaries Subsidiaries, as reasonably determined in good faith by the Company’s Board case may be, delivers to the Trustee an opinion addressed to the Company or such Restricted Subsidiary, as the case may be, from an accounting, appraisal or investment banking firm of Directors national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a senior officer financial point of view or that such transaction meets the requirements of clause (1) of Section 5.11(a);
(8) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;; and
(29) transactions exclusively between pursuant to agreements or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement arrangements in effect on the Issue Initial Issuance Date that are described in the prospectus supplement, the accompanying prospectus or the documents incorporated by reference herein and therein, or any amendment, modification, or supplement thereto or replacement thereof, as in effect on long as such date agreement or arrangement, as thereafter amended in a manner so amended, modified, supplemented or replaced, is not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable more disadvantageous to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, agreement or arrangement in each case, as is reasonably determined in good faith by existence on the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventIssuance Date.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions Guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of its Affiliates $5.0 million on or after the Closing Date (each, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), other thanunless:
(a1) such Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no less favorable to the Company Borrower or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company Borrower or the relevant such Restricted Subsidiary and with an unrelated Person. The Board of Directors or a senior officer of ; and
(2) the Company must approve each Borrower delivers to the Administrative Agent:
(a) with respect to any Affiliate Transaction that involves or series of related Affiliate Transactions involving aggregate payments or other assets with a fair market value consideration in excess of $15.0 10.0 million. This approval must be evidenced , a resolution of the Board of Directors of the Borrower set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this Section 6.10 and that such Affiliate Transaction has been approved by a board resolution that states that majority of the disinterested members of the Board of Directors of the Borrower; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Borrower or such board has determined that Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the transaction complies with provisions of the foregoing provisions. If prior paragraph:
(1) any consulting or employment agreement or arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries approved by a majority of the disinterested members of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries);
(2) transactions between or among the Borrower and/or its Restricted Subsidiaries;
(3) payment of reasonable directors' fees to directors of the Borrower, any Parent or any Restricted Subsidiary and the provision of customary indemnities to directors, officers, employees or consultants of the Company enters into Borrower, and any Parent or any Restricted Subsidiary;
(4) issuances and sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Borrower;
(5) any tax sharing agreement or arrangement and payments pursuant thereto among the Borrower and its Subsidiaries and any other Person with which the Borrower or its Subsidiaries is required or permitted to file a consolidated, combined or unitary tax return or with which the Borrower or any of its Restricted Subsidiaries is or could be part of a consolidated, combined or unitary group for tax purposes in amounts not otherwise prohibited by this Agreement;
(6) Restricted Payments that are permitted by Section 6.07 or any Permitted Investments;
(7) the payment (directly or through any Parent) of annual management, consulting, monitoring and advising fees and related expenses to the Equity Sponsor and its respective Affiliates pursuant to the Sponsor Management Agreement, as the same may be amended, modified or replaced from time to time, so long as any such amendment, modification or replacement is not materially less favorable to the Borrower and its Restricted Subsidiaries than such agreement as in effect on the Closing Date;
(8) payments by the Borrower or any of its Restricted Subsidiaries to the Equity Sponsor and its Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) in good faith; provided that the maximum aggregate amount of any such fees in any 12-month period shall not exceed 1.25% of the aggregate transaction value (including enterprise value in connection with acquisitions or divestitures) (or portion thereof) in respect of which such services are rendered (excluding, in any case, commitment or similar fees for providing financing);
(9) loans to employees that are approved in good faith by a majority of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) in an Affiliate Transaction that involves aggregate amount not to exceed $5.0 million outstanding at any time and advances and expense reimbursements to employees in the ordinary course of business;
(10) agreements (and payments relating thereto) existing on the Closing Date, as the same may be amended, modified or other assets replaced from time to time, so long as any amendment, modification or replacement is not materially less favorable to the Borrower and its Restricted Subsidiaries than such agreements as in effect on the Closing Date;
(11) transactions with a fair market value joint venture engaged in excess a Permitted Business; provided that all the outstanding ownership interests of $30.0 millionsuch joint venture are owned only by the Borrower, then prior its Restricted Subsidiaries and Persons who are not Affiliates of the Borrower;
(12) transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(13) transactions with customers, clients, suppliers or purchasers or sellers of goods, in each case in the ordinary course of business; and
(14) transactions which have been approved by a majority of the disinterested members of the Board of Directors of the Borrower (or the Board of Directors of Nortek in the case of Nortek and its Restricted Subsidiaries) and with respect to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from which an Independent Financial Advisor has delivered an opinion as to the fairness of that Affiliate Transaction to the Holders Borrower or such Restricted Subsidiary of Notes such transaction from a financial point of view, and deliver that opinion to the Trustee. The restrictions described in the preceding paragraphs of this Section 4.12 do not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by any provision contained in this Indenture;
(3) any agreement in effect on the Issue Date as in effect on such date or as thereafter amended in a manner not materially less favorable to the Holders of Notes in the aggregate;
(4) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and the Affiliate Guarantors, on the other, in the ordinary course of business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between the Company and/or its Restricted Subsidiaries, on the one hand, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the other, in the ordinary course of business, and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets with a fair market value in excess of $5.0 million, the terms of such transactions, taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms which reasonably would have been obtained from an unrelated party, in each case, as is reasonably determined in good faith by the Board of Directors or a senior officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenture; and
(10) any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away Event.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly make any payment to, or indirectlysell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any properties or assets from, or enter into or permit to exist make or amend any transaction transaction, contract, agreement, understanding, loan, advance or series of related transactions guarantee with, or for the benefit of, any Affiliate of its Affiliates the Company (each, an “Affiliate Transaction”), other thanunless:
(a1) the Affiliate Transactions described in the last paragraph of this Section 4.12; and
(b) Affiliate Transactions Transaction is on terms that are no not less favorable to the Company or the relevant Restricted Subsidiary than those terms that would reasonably have been obtained at that time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary and an unrelated Person. The Board of Directors or a senior officer of the Company must approve each Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $15.0 million. This approval must be evidenced by a board resolution that states that such board has determined that the transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction that involves aggregate payments or other assets with a fair market value in excess of $30.0 million, then prior to the consummation of that Affiliate Transaction, the Company must obtain a favorable opinion from an Independent Financial Advisor as to the fairness of that Affiliate Transaction to the Holders of Notes from a financial point of view, and deliver that opinion ; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $10 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration to or from an Affiliate in excess of $20 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The restrictions described in following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the preceding paragraphs provisions of the prior paragraph of this Section 4.12 do not apply to4.11:
(1) reasonable fees any employment agreement or arrangement, equity award, equity option or cash or equity settled equity appreciation agreement or plan, employee benefit plan, officer or director indemnification agreement, severance agreement, consulting agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or which is customary in the Oil and compensation paid Gas Business, and payments, awards, grants or issuances of securities pursuant thereto;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or otherwise controls, such Person or has nominated or appointed a person to the Board of Directors of that Person;
(4) customary compensation, indemnification and indemnity provided on behalf of other benefits made available to officers, directors, employees or consultants of the Company or any a Restricted Subsidiary of its Restricted Subsidiaries as reasonably determined in good faith by the Company’s Board , including reimbursement or advancement of Directors out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(5) issuances of Equity Interests (other than Disqualified Stock) of the Company to, or a senior officer receipt of capital contributions from, Affiliates of the Company and any dividend or distribution payable in Equity Interests (other than Disqualified Stock) of the Company;
(26) any Permitted Investments or Restricted Payments that are permitted by Section 4.07;
(7) transactions exclusively between or among the Company and or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the Company or exclusively between or among such Restricted SubsidiariesSubsidiary, as applicable; provided that such transactions are not otherwise prohibited by director abstains from voting as a director of the Company or such Restricted Subsidiary, as applicable, on any provision contained in this Indenturematter involving such other Person;
(3) 8) the existence of, and the performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of, any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the date of this Indenture, as such agreements may be amended, modified, supplemented or replaced from time to time; provided, however, that any amendment, modification, supplement or replacement entered into after the date of this Indenture will be permitted to the extent that its terms are not materially more disadvantageous, taken as a whole, to the Holders of the Notes than the terms of the agreements in effect on the Issue Date date of this Indenture (as in effect on such date or as thereafter amended in conclusively evidenced by a manner not materially less favorable to the Holders of Notes in the aggregateBoard Resolution);
(49) transactions between any transaction in which the Company and/or or any of its Restricted Subsidiaries, on as the one handcase may be, and delivers to the Affiliate GuarantorsTrustee an opinion from an accounting, on appraisal or investment banking firm of national standing stating that such transaction is fair to the other, Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the preceding paragraph of this Section 4.11;
(10) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business or which are customary in the Oil and Gas Business and (b) pledges by the Company or any Restricted Subsidiary of the Company of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Company’s Unrestricted Subsidiaries;
(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary of the Company if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;
(12) transactions with joint venture partners, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business or which are customary in the Oil and Gas Business and otherwise in compliance with the terms of this Indenture;
(5) (a) transactions between Indenture similar to those contained in similar contracts entered into by the Company and/or its or any Restricted SubsidiariesSubsidiary and unrelated third parties, on or if neither the one handCompany nor any Restricted Subsidiary has entered into a similar contract with an unrelated third party, and Subsidiaries of Mosaic that are not Affiliate Guarantors, on the otherwhich are, in the ordinary course of business, aggregate (taking into account all the costs and (b) transactions of the type set forth in clause (6) or (7) of the second paragraph of Section 4.09; provided that in the case of any such transaction or series of related transactions of the type set forth in (a) or (b) that involves aggregate payments or other assets benefits associated with a fair market value in excess of $5.0 million, the terms of such transactions), taken as a whole, are fair to the Company and its Restricted Subsidiaries, taken as a whole, or are on terms no not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, Subsidiaries than the terms which reasonably those that would have been obtained from in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated third party, in each case, as is reasonably determined in the good faith by determination of the Company’s Board of Directors or a senior any executive officer of the Company;
(6) a Phosphates Combination Transaction;
(7) the issuance of a guarantee by the Company and/or any of its Restricted Subsidiaries involved in or otherwise familiar with respect to any Indebtedness of any Affiliate Guarantor, to the extent permitted by Section 4.08;
(8) Permitted Investments and Restricted Payments made in compliance with Section 4.09 of this Indenture;
(9) transactions between any of the Company or any of its Subsidiaries and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case, provided that such transactions are not otherwise prohibited by this Indenturetransaction; and
(1013) dividends and distributions to the Company and its Restricted Subsidiaries by any transaction of the type set forth in clause (7) or (8) of the definition of “Asset Sale”. This Section 4.12 will not apply after the Fall-Away EventUnrestricted Subsidiary.
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