Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect), (a) the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries. (b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. (c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Second Supplemental Indenture (Horton D R Inc /De/)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee officer or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate director of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions Restricted Subsidiary (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the on terms of which that are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, fair and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair reasonable to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such . Each Affiliate Transaction involving aggregate payments or other property having a value Fair Market Value in excess of more than $50.0 million, the Company 2.5 million shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been be approved by the Board of Directors of the Company, such approval to be evidenced by a resolution of such Board of Directors stating that such Board of Directors (including a majority of the disinterested directors) has determined that such transaction complies with the foregoing provisions. In addition to the foregoing, with respect to any Affiliate Transaction involving aggregate consideration in excess of $5.0 million or more, the Company must obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, are fair from a financial point of view. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or among the Company and/or any of the Restricted Subsidiaries; provided, however, in any such case, no officer, director or beneficial holder of 10% or more of any class of Equity Interests of the Company shall beneficially own any Voting Stock of any such Restricted Subsidiary (other than by reason of its ownership of Equity Interests of the Company), (ii) Capital Stock issuances to directors, officers and employees of the Company transactions between or its Subsidiaries pursuant to plans approved by the stockholders of the Companyamong Restricted Subsidiaries, (iii) any Restricted Payment otherwise permitted under Section 3.044.06, (iv) any transaction between directors' fees, indemnification and similar arrangements, officers' indemnification, employee stock option or among employee benefit plans, employee salaries and bonuses, employment agreements or legal fees paid or created in the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate ordinary course of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) business and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of payments pursuant to arrangements as in effect on the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryIssue Date.
Appears in 1 contract
Sources: Indenture (Trans Resources Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, enter into any loantransaction or series of related transactions (including, advancewithout limitation, guarantee the purchase, sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $10.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding (a) and (b) above The restrictions set forth in this section shall not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, an Affiliate Transaction will not include (i) any contractdirectors, agreement employees or understanding with, or for the benefit of, or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(provided3) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, -------- however, no such transaction shall involve and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction;
(4) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not materially more disadvantageous on the whole to the extent Holders than the applicable amount constitutes a original agreement as in effect on the Issue Date; and
(5) Restricted Payment Payments or Permitted Investments permitted by this Indenture)) and ;
(v6) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to with a Person which would constitute an Affiliate Transaction solely because the Company or a Restricted SubsidiarySubsidiary owns an equity interest in or otherwise controls such Person; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest in such Person; and
(7) (a) any transaction with an Affiliate where the only consideration paid by the Company or any Restricted Subsidiary is Qualified Capital Stock or (b) the issuance or sale of any Qualified Capital Stock.
Appears in 1 contract
Sources: Indenture (Exide Technologies)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5,000,000 shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million10,500,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractreasonable fees and compensation paid to, agreement loans or understanding withadvances to, or for the benefit and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (provided, -------- however, no such transaction shall involve iii) any other Affiliate payments or transactions pursuant to agreements in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date; (iv) Restricted Payment Payments permitted by this Indenture)) ; and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all Investments by an Affiliate of the payments to, or Company in the Capital Stock (other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to than Disqualified Stock) of the Company or a any Restricted SubsidiarySubsidiary of the Company.
Appears in 1 contract
Sources: Indenture (Air Rental Supply Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under the fourth paragraph of this Section and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of (a) $5.0 million shall be approved by senior management of the Company or such Restricted Subsidiary (or, where such senior management is a proposed party to such Affiliate Transaction, the Board of Directors of the Company or such Restricted Subsidiary), as the terms which could case may be, such approval to be obtained evidenced by an Officers' Certificate stating that such senior management or Board of Directors has determined that such transaction complies with the foregoing provisions; and (b) $10.0 million shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such senior management or Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view., issued by an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in the first paragraph of this Section 4.11 shall not apply to:
(c1) Notwithstanding (a) reasonable fees and (b) above compensation paid to and indemnity and reimbursement provided on behalf of officers, an Affiliate Transaction will not include (i) any contractdirectors, agreement employees or understanding with, or for the benefit of, or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management;
(2) any employment agreement entered into by the Company or any of its Restricted Subsidiaries generally in the ordinary course of business;
(in their capacities as such3) that has been the grant of stock options, restricted stock or similar rights to the Company's or any of the Restricted Subsidiaries' employees, directors, officers and consultants pursuant to plans approved by the Board of Directors of the Company;
(4) loans or advances to employees or consultants in the ordinary course of business, consistent with past practices;
(ii5) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(6) transactions exclusively between or among the Company or any of its Restricted Subsidiaries and a Permitted Joint Venture in the ordinary course of business and customary for transactions of such type, provided such transactions are not otherwise prohibited by this Indenture;
(provided, -------- however, no such transaction shall involve 7) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes original agreement as in effect on the Issue Date as reasonably determined by the Board of Directors or senior management of the Company;
(8) transactions effected as part of a Qualified Securitization Transaction; and
(9) Restricted Payment Payments, Permitted Investments or Permitted Liens permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Ironton Iron Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable, taken as a whole, than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $500,000 shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million1,500,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary in their capacities the ordinary course as such) that has been approved determined in good faith by the Company's Board of Directors of the Company, Directors; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (provided, -------- however, no such transaction shall involve iii) any other Affiliate written agreement as in effect as of the ------- Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto so long as any such amendment is not more disadvantageous to the Holders in any material respect than the agreement as in effect on the Issue Date); (iv) loans or advances to employees of the Company or any Restricted Subsidiary (other than Permitted Holders) in the ordinary course and in an Unrestricted Subsidiary aggregate amount not to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and exceed $250,000 at any one time outstanding; (v) payments (A) to P&E Properties, Inc. or any transaction between one of its Affiliates in an aggregate amount not to exceed $600,000 in any fiscal year to pay management fees and (B) to reimburse P&E Properties, Inc. or more Restricted Subsidiaries any of its Affiliates for reasonable services and one or more Unrestricted Subsidiaries where all of the out-of-pocket costs and other expenses actually incurred in connection with such services; and (vi) payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarypermitted by Section 4.04.
Appears in 1 contract
Sources: Indenture (Manischewitz B Co LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than
(1) Affiliate Transaction the Transactions described in clause (b) below, and
(2) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with . With respect to any such all Affiliate Transaction Transactions involving aggregate payments or having other property with a value Fair Market Value in excess of more than $10 million500,000, the Company shall have deliver an Officers' Certificate to the Trustee certifying that such transactions are in compliance with clause (xa)(2) obtained of the approval preceding paragraph. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $2,000,000 shall be approved by a majority of the members of the Board of Directors of the Company and (y) either obtained the approval of including a majority of the Company's disinterested directors members thereof), as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or obtained any Restricted Subsidiary of the Company enters into an opinion Affiliate Transaction (or a series of related Affiliate Transactions related to a qualified independent financial advisor common plan) that involves an aggregate Fair Market Value of more than $5,000,000, then the Company shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view an Independent Financial Advisor and (ii) file the same with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of viewTrustee.
(cb) Notwithstanding The restrictions set forth in clause (a) above shall not apply to:
(1) reasonable fees and (b) above compensation paid to, an Affiliate Transaction will not include (i) any contract, agreement indemnity and reimbursement or understanding with, or for the benefit advancement of out of pocket expenses provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided, -------- however, no such transaction shall involve 3) any other Affiliate agreement as in effect as of the ------- Company (other than an Unrestricted Subsidiary Issue Date or any transaction contemplated thereby and any amendment thereto or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(4) Restricted Payment Payments permitted by this Indenture)) and ;
(v5) any merger or other transaction between one with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all creating a holding company of the payments toCompany; and
(6) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other benefits conferred uponemployment-related agreements, such Unrestricted Subsidiaries are substantially contemporaneously dividended, arrangements or otherwise distributed or transferred without charge, to plans entered into by the Company or a any of its Restricted SubsidiarySubsidiaries in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Hawk Corp)
Limitations on Transactions with Affiliates. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 the following covenant will no longer be in effect),
(a) , the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for --------------------- any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 50 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.043.03, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other -------- ------- Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureInden- ture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Thirteenth Supplemental Indenture (Horton D R Inc /De/)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(ai) the Company Lessee will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (A) Affiliate Transaction the Transactions permitted under paragraph (ii) below and (B) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of Lessee or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as the terms which could similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5,000,000 shall be obtained approved by the Company unaffiliated members of the Board of Directors of Lessee or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable transaction made on an arm's length basis with Persons who are not Board Resolution stating that such a holder, an Affiliate of such a holder or an Affiliate unaffiliated members of the Company Board of Directors has determined that such transaction complies with the foregoing provisions. If Lessee or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter of Lessee enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million10,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Lessee or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to Lessee or the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from a nationally -45- recognized firm qualified to do the business for which it is engaged and file the same with Indenture Trustee.
(cii) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include The restrictions set forth in clause (i) any contract, agreement or understanding with, or for the benefit above shall not apply to (A) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for consultants of Lessee or any Restricted Subsidiary of Lessee as determined in good faith by Lessee's Board of Directors or senior management; (B) transactions exclusively between or among Lessee and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Agreement; (C) any agreement as in effect as of the benefit of Issue Date (including, but not limited to, the Weatherford Transition Services Agreement) or any amendment ▇▇▇▇▇▇▇ ▇▇ any transaction contemplated thereby (including, but not limited to, pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Tranche A Noteholders in any material respect than the original agreement as in effect on the Issue Date; (D) Restricted Payments permitted by Section 9.2(b); (E) the Tax Sharing Agreement; (F) employment agreements with officers and employees of Lessee and its Restricted Subsidiaries, in the Company ordinary course of business; (G) loans and advances to employees not to exceed $5,000,000 outstanding at any one time, in the ordinary course of business; (H) arrangements with directors of Lessee existing on the Issue Date as disclosed in the Offering Memorandum; (I) the Acquisition of Gas Services International Ltd. and related entities including International Pumps & Compressions Pty. Ltd. for consideration of approximately $21 million, if consummated within six (6) months of the Issue Date, and documents related thereto; and (J) the provision of compression or its Subsidiaries generally (related services to Weatherford or any other Affiliate in their capacities as such) the ordinary course of ▇▇▇▇▇▇▇▇ ▇n market terms; provided, however, that has been if aggregate payments or property involved in any such transaction or series of related transactions exceeds $5,000,000, such transaction or transactions shall be approved by the unaffiliated members of the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryLessee.
Appears in 1 contract
Sources: Participation Agreement (Universal Compression Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company The Issuer will not, and will not cause permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted by the second paragraph below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate the Issuer or such Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as the terms which could similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5 million shall be obtained approved by the Company Board of Directors of the Issuer or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Di- rectors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder the foregoing provisions. If the Issuer or an Affiliate any Subsidiary of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter Issuer enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 20 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company Issuer or such Restricted the relevant Subsidiary, as the case may be, from a financial point of view., from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this covenant shall not apply to
(c1) Notwithstanding (a) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company Issuer or its Subsidiaries generally (any Subsidiary of the Issuer as determined in their capacities as such) that has been approved good faith by the Issuer's Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company Issuer and one or more Restricted any of its Subsidiaries or exclusively between or among Restricted Subsidiaries such Subsidiaries;
(provided, -------- however, no such transaction shall involve 3) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date; and
(4) Restricted Payment Payments permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1,000,000 shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million5,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from a nationally recognized firm qualified to do the business for which it is engaged and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to directors, any amendment thereto) in any replacement agreement thereto so long as any such amendment or re- placement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) the Tax Sharing Agreement; (vi) employment agreements with officers and employees of the Company or and its Subsidiaries Restricted Subsidiaries, in the ordinary course of business; (vii) loans and advances to employees not to exceed $500,000 outstanding at any one time, in the ordinary course of business; (viii) provided that there is no existing Event of Default, payments pursuant to plans approved by the stockholders terms of the Company, Management Agreement; and (iiiix) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among arrangements with directors of the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of existing on the ------- Company (other than an Unrestricted Subsidiary to Issue Date as disclosed in the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryOffering Memorandum.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any (each of the Company's Subsidiaries foregoing, an “Affiliate Transaction”) involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of $10.0 million, unless
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company (including any Affiliates of such holders), or the relevant Restricted Subsidiary than those that would have been obtained in a single comparable transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted SubsidiarySubsidiary with an unrelated Person and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $30.0 million, as a Board Resolution adopted by the case may bemajority of the members of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (a) above.
(b) The foregoing provisions shall not apply to the following:
(1) transactions between or among the Company or any of the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 1010 of this Indenture and the definition of Permitted Investments;
(3) transactions pursuant to compensatory, in a comparable transaction made on an arm's length basis benefit and incentive plans and agreements with Persons who are not such a holderofficers, an Affiliate of such a holder directors, managers or an Affiliate employees of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of Subsidiaries approved by a majority of the Board of Directors of the Company in good faith;
(4) the payment of reasonable and customary fees and reimbursements paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary;
(y5) either obtained payments by the approval Company or any Restricted Subsidiary to the Sponsors or any Co-Investors for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, and any customary indemnities related thereto, which payments are approved by a majority of the Company's disinterested directors or obtained an opinion members of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to Board of Directors of the Company in good faith;
(6) transactions in which the Company or such any Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered delivers to the Trustee a letter from an opinion of a qualified independent financial advisor to the effect Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Company or such Restricted SubsidiarySubsidiary from a financial point of view or meets the requirements of clause (1) of Section 1013(a);
(7) payments or loans (or cancellations of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements with such employees or consultants that are, in each case, approved by the Company in good faith;
(8) any agreement, instrument or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined by the Company in good faith, as evidenced by an Officers’ Certificate);
(9) the existence of, or the performance by the Company or any of the Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or its equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however that the existence of, or the performance by the Company or any Restricted Subsidiary 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 (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 the Holders in any material respect than the terms of the original agreement in effect on the Issue Date as reasonably determined in good faith by the Company;
(10) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services (including pursuant to joint venture agreements), in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(11) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder or to any director, manager, officer, employee or consultant of the Company or any direct or indirect parent company thereof;
(12) transactions with a China Entity;
(13) investments by the Sponsors and the Co-Investors in newly-issued securities of the Company or any of its Restricted Subsidiaries so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than such investor’s pro rata share (based on its holdings of the common equity of Parent) of the proposed or outstanding issue amount of such new class of securities;
(14) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(15) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally; provided, however, that with regard to an issue of indebtedness of the Company or any of its Subsidiaries, such Affiliate holds no more than 15% of such issue;
(16) any transaction in which the only consideration paid by the Company or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Company;
(17) transactions with any joint venture engaged in a Similar Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(18) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of reincorporating the Company in a new jurisdiction;
(19) any agreement that provides customary registration rights to the equityholders of the Company or any parent of the Company and the performance of such agreements; and
(20) transactions between the Company or any Restricted Subsidiary and any person that is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or any direct or indirect parent, as the case may be, from a financial point of viewon any matter involving such other Person.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Company and the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, to or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's ’s Subsidiaries involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), $7.5 million in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm’s-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's ’s Subsidiaries.
(b) In addition, the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless unless:
(i) with respect to any such Affiliate Transaction involving or having a value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's ’s disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view and view; and
(ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 30.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include include:
(i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of of, employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, ;
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, ;
(iii) any Restricted Payment otherwise permitted under Section 3.044.07 hereof or any Permitted Investment (other than a Permitted Investment referred to in clause (b) of the definition thereof, except as permitted by clause (iv) below);
(iv) any transaction between or among the Company and and/or one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 4.06;
(v) any transaction between the Company or one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries (1) where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary or (2) in the ordinary course of business, including, without limitation, sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of (A) homes, improved land and unimproved land and (B) real estate (including related amenities and improvements);
(vi) issuances, sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between Restricted Subsidiaries and Unrestricted Subsidiaries of the Company;
(vii) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, the Issuer or any Restricted Subsidiary;
(viii) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee an opinion of a qualified independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that 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;
(ix) any agreement or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date);
(x) transactions with joint ventures entered into in the ordinary course of business, including, without limitation, sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of (A) homes, improved land and unimproved land and (B) real estate (including related amenities and improvements);
(xi) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns Capital Stock in or otherwise controls such Person;
(xii) the issuance and transfer of Capital Stock of the Company and the granting and performance of customary registration rights;
(xiii) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, in the ordinary course of business;
(xiv) intellectual property licenses in the ordinary course of business;
(xv) transactions between the Company or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Company; provided, however, that such director abstains from voting as a director of the Company on any matter involving such other Person; and
(xvi) pledges of Capital Stock of Unrestricted Subsidiaries.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company The Issuer will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions Issuer (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $2.0 million, --------------------- except for any unless:
(1) the Affiliate Transaction is on terms that are not materially less favorable to the terms of which are at least as favorable as Issuer or the terms which could be relevant Restricted Subsidiary than those that would have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person, with such determination to be made on an arm's length basis with Persons who are not at the time such a holder, an Affiliate of such a holder Transaction is entered into or an Affiliate of the Company or any of the Company's Subsidiaries.agreed to; and
(b2) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (ia) with respect to any such Affiliate Transaction or series of related Affiliate Transactions involving or having a value aggregate consideration in excess of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority Board Resolution of the Board of Directors of the Company Issuer set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.14 and (y) either obtained the approval of that such Affiliate Transaction has been approved by a majority of the Company's disinterested directors members of the Board of Directors; and (b) with respect to any Affiliate Transaction or obtained series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million or as to which there are no disinterested members of the Board of Directors, an opinion of a qualified independent financial advisor as to the effect that fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view is obtained from an independent accounting, appraisal or investment banking firm of international standing qualified to perform the task for which such firm has been engaged (as determined by the Issuer in good faith).
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, shall not be subject to Section 4.14(a):
(1) director, officer, employee and consultant compensation, benefit, reimbursement and indemnification agreements, plans and arrangements (iiand payment awards in connection therewith) entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of a Permitted Business;
(2) transactions between or among the Issuer and/or its Restricted Subsidiaries;
(3) transactions with respect to any such a Person (other than an Unrestricted Subsidiary of the Issuer) that is an Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have Issuer solely because either (x) obtained the approval of Issuer owns, directly or through a majority of the Board of Directors of the Company and Restricted Subsidiary, an Equity Interest in, or controls, such Person or (y) delivered to a director of such Person is also a director of the Trustee an opinion Issuer; provided such director abstains from voting as a director of a qualified independent financial advisor to the effect that Issuer on any matter involving such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.other person;
(c4) Notwithstanding (aw) and (b) above , any issuance of Qualified Equity Interests of the Issuer to an Affiliate Transaction will not include (i) and the granting or performance of registration rights in respect of any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees Qualified Equity Interests of the Company or its Subsidiaries generally (in their capacities as such) that has Issuer, which rights have been approved by the Board of Directors of the Company, Issuer; (iix) Capital Stock issuances any contribution to directors, officers and employees the Qualified Equity Interest capital of the Company Issuer by an Affiliate; (y) any cash dividend or its Subsidiaries pursuant to plans approved redemption payment required by the stockholders terms of the Company, Existing Mandatorily Redeemable Preference Shares as in effect on the Issue Date or (iiiz) any incurrence or issuance by the Issuer or any Restricted Payment otherwise permitted under Subsidiary of Indebtedness or Disqualified Stock owed to or held by an Affiliate on the same basis as Indebtedness or Disqualified Stock owed to or held by non-Affiliates as part of any underwritten securities offering or syndicated loan financing, and any payments in respect of such Indebtedness;
(5) Restricted Payments that do not violate Section 3.04, (iv) any transaction between or among the Company 4.11 and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate Investments consisting of the ------- Company Permitted Investments (other than Permitted Investments made under clauses (3) or (15) of the definition thereof);
(6) the performance of obligations of the Issuer or any Restricted Subsidiary under the terms of any agreement that is in effect as of or on the Issue Date (other than the Existing Charters, the Existing Management Agreements or the Global Expense Agreement) and any amendment, modification, supplement, extension or renewal, from time to time, thereto or any transaction contemplated thereby (including pursuant to any amendment, modification, supplement, extension or renewal, from time to time, thereto) in any replacement agreement thereto, so long as any such amendment, modification, supplement, extension or renewal, or replacement agreement, is not materially more disadvantageous to the Holders of Notes taken as a whole than the original agreement as in effect on the Issue Date;
(7) the performance of obligations of the Issuer or any Restricted Subsidiary under the terms of the Existing Charters, the Existing Management Agreements and the Global Expense Agreement as in effect on the Issue Date or any amendment, modification, supplement, replacement, extension or renewal, from time to time, thereto or any transaction contemplated thereby (including pursuant to any amendment, modification, supplement, replacement, extension or renewal, from time to time, thereto); provided that
(A) any such amendment or modification that has the effect of modifying the rate of charter hire during the current term of the Existing Charters as in effect on the Issue Date is (x) not materially more disadvantageous to the Holders taken as a whole than the original agreement as in effect on the Issue Date, and (y) is on terms not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an Unrestricted unrelated person; and
(B) any other amendment, modification, supplement, replacement, extension or renewal (including, for the avoidance of doubt, any extension or renewal of an Existing Charter effective upon the expiration of its current term as in effect on the Issue Date) is either (x) not materially more disadvantageous to the Holders taken as a whole than the original agreement as in effect on the Issue Date, or (y) is on terms not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated person, in each case, as reasonably determined by a resolution of the Board of Directors of the Issuer and approved by a majority of the disinterested members thereof;
(8) transactions effected as part of a Qualified Securitization Transaction;
(9) transactions in which the Issuer delivers to the Trustee an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view or that such Affiliate Transaction meets the requirements of Section 4.14(a)(1), in each case, issued by an independent accounting, appraisal or investment banking firm of international standing qualified to perform the task for which such firm has been engaged (as determined in good faith by the Issuer);
(10) payments, loans or advances to employees or consultants or guarantees in respect thereof (or cancellation of loans, advances or guarantees) for bona fide business purposes;
(11) other than with CMA CGM, transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of a Permitted Business and otherwise in compliance with the terms of this Indenture; provided such transactions are on terms that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person, as reasonably determined by the Issuer;
(12) any sale or disposition of a Vessel for an aggregate purchase price equal to or exceeding its Appraised Value; and
(13) transactions involving the purchase, redemption, exchange, acquisition or retirement of any Existing Mandatorily Redeemable Preference Shares and that (to the extent applicable, when considered together with any related transactions occurring in connection with such transactions) are in the applicable best interests of the Issuer and the Restricted Subsidiaries as reasonably determined by a Board Resolution of the Issuer and approved by a majority of the disinterested members thereof. Regardless of the amount constitutes a of aggregate payments or consideration to be made thereunder, and without limiting Section 4.14(b)(7), the Issuer will not, and will not permit any of its Restricted Payment permitted by this Indenture)) and (v) Subsidiaries to, enter into any amendment, modification, supplement, replacement, extension or renewal, from time to time, of any Existing Charter or any transaction between one contemplated thereby (including pursuant to any amendment, modification, supplement, replacement, extension or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments torenewal, or other benefits conferred uponfrom time to time, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarythereto) except in compliance with Section 4.14(b)(7).
Appears in 1 contract
Sources: Indenture (Global Ship Lease, Inc.)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2,500,000 shall be approved by a majority of non-interested directors of the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such majority of non-interested directors of the Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million5,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee consummation thereof, obtain an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is transaction or series of related transactions are fair to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, agents or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (provided, -------- however, iii) any agreement (including the Management Agreement and the payment of all fees and expenses contemplated thereunder; provided that no such transaction shall involve any other Affiliate payment of the ------- Company management fees or expenses (other than an Unrestricted Subsidiary the Closing Fee) contemplated under the Management Agreement shall be made un-
(i) the Consolidated Fixed Charge Coverage Ratio during the four full fiscal quarters ending on or prior to the extent date of any such payment is greater than or equal to 1.75 to 1.0 and (ii) the applicable amount constitutes a Consolidated Fixed Charge Coverage Ratio calculated solely for the one full fiscal quarter ending on or prior to the date of any such payment is greater than or equal to 1.75 to 1.0) as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Company or its Restricted Payment Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture)) and ; (v) any transaction between one issuance of securities or more Restricted Subsidiaries and one other payments, awards or more Unrestricted Subsidiaries where all of the payments grants in cash, securities or otherwise pursuant to, or other benefits conferred uponthe funding of, such Unrestricted Subsidiaries are substantially contemporaneously dividendedemployment arrangements, stock options and stock ownership plans of the Company entered into in the ordinary course of business and approved by the Board of Directors; (vi) loans and advances, or otherwise distributed or transferred without chargeguarantees of loans of third parties, to employees and officers of the Company and its Restricted Subsidiaries in the ordinary course of business not in excess of $2.0 million at any one time outstanding; and (vii) indemnification agreements provided for the benefit of the Company or a any Restricted Subsidiary of the Company from officers, directors or employees of the Company or any Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Penhall Co)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend permit to exist any contract, agreement transaction or understanding series of related transactions with, or for the benefit of, any of its Affiliates (each an “Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holdersTransaction”), in a single transaction or series of related transactions other than (each, an "x) Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
Transactions permitted under paragraph (b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company below and (y) either Affiliate Transactions that are on terms that are no less favorable than those which would have been obtained the approval in an arm’s-length transaction. All Affiliate Transactions or series thereof involving aggregate payments or other property with a fair market value in excess of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company 1.0 million shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been be approved by the Board of Directors of the CompanyCompany or such Restricted Subsidiary. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction or a series thereof that involves an aggregate fair market value of more than $7.5 million, the Company or such Restricted Subsidiary must deliver to the Trustee a fairness opinion regarding the transaction or series of related transactions from an Independent Financial Advisor.
(iib) Capital Stock issuances The restrictions set forth in paragraph (a) of this Section 4.11 shall not apply to:
(1) loans and payments to or provided on behalf of, officers, directors, officers and employees or consultants of the Company or its Subsidiaries pursuant to plans approved any Restricted Subsidiary of the Company as determined in good faith by the stockholders Company’s Board of the Company, Directors or senior management;
(iii2) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided that such transactions are not otherwise prohibited by the Indenture;
(3) any agreement as in effect as of the Issue Date, as amended or replaced, or any transaction contemplated by such agreement;
(4) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction;
(5) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(provided, -------- however, no such 6) the issuance and sale of Qualified Capital Stock;
(7) any transaction shall involve between the Holders and the Company or any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary its Restricted Subsidiaries relating to the extent the applicable amount constitutes a Notes or this Indenture; and
(8) Permitted Investments and Restricted Payment Payments permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (MxEnergy Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) that involves an aggregate fair market value of more than $5.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) 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 this Indenture; (iii) any agreement as in effect as of the Issue Date or contemplated by the Contribution Agreement or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement; (iv) Permitted Investments and Restricted Payments made in compliance with this Indenture; (v) transactions between or among any of the Company, any of its Subsidiaries generally 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 (vi) transactions with distributors or other purchases or sales of goods or services, in their capacities each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which when taken together are fair to the Company or the Restricted Subsidiaries as such) that has been approved by applicable, in the reasonable determination of the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments tosenior management thereof, or other benefits conferred upon, are on terms at least as favorable as might reasonably have been obtained at such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarytime from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Tioxide Americas Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any (each of the Company's Subsidiaries foregoing, an “Affiliate Transaction”) involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of $10.0 million, unless
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company (including any Affiliates of such holders), or the relevant Restricted Subsidiary than those that would have been obtained in a single comparable transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted SubsidiarySubsidiary with an unrelated Person and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $30.0 million, as a Board Resolution adopted by the case may bemajority of the members of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (a) above.
(b) The foregoing provisions shall not apply to the following:
(1) transactions between or among the Company or any of the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 1010 of this Indenture and the definition of Permitted Investments;
(3) transactions pursuant to compensatory, in a comparable transaction made on an arm's length basis benefit and incentive plans and agreements with Persons who are not such a holderofficers, an Affiliate of such a holder directors, managers or an Affiliate employees of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of Subsidiaries approved by a majority of the Board of Directors of the Company in good faith;
(4) the payment of reasonable and customary fees and reimbursements paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary;
(y5) either obtained payments by the approval Company or any Restricted Subsidiary to the Sponsors or any Co-Investors for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, and any customary indemnities related thereto, which payments are approved by a majority of the Company's disinterested directors or obtained an opinion members of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to Board of Directors of the Company in good faith;
(6) transactions in which the Company or such any Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered delivers to the Trustee a letter from an opinion of a qualified independent financial advisor to the effect Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Company or such Restricted SubsidiarySubsidiary from a financial point of view or meets the requirements of clause (1) of Section 1013(a);
(7) payments or loans (or cancellations of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements with such employees or consultants that are, in each case, approved by the Company in good faith;
(8) any agreement, instrument or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined by the Company in good faith, as evidenced by an Officers’ Certificate);
(9) the existence of, or the performance by the Company or any of the Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or its equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however that the existence of, or the performance by the Company or any Restricted Subsidiary 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 (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 the Holders in any material respect than the terms of the original agreement in effect on the Issue Date as reasonably determined in good faith by the Company;
(10) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services (including pursuant to joint venture agreements), in each case in the ordinary course of business and otherwise in compliance with the terms of the Indenture that are fair to the Company and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(11) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder or to any director, manager, officer, employee or consultant of the Company or any direct or indirect parent company thereof;
(12) transactions with a China Entity;
(13) investments by the Sponsors and the Co-Investors in newly-issued securities of the Company or any of its Restricted Subsidiaries so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than such investor’s pro rata share (based on its holdings of the common equity of Parent) of the proposed or outstanding issue amount of such new class of securities;
(14) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(15) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally; provided, however, that with regard to an issue of indebtedness of the Company or any of its Subsidiaries, such Affiliate holds no more than 15% of such issue;
(16) any transaction in which the only consideration paid by the Company or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Company;
(17) transactions with any joint venture engaged in a Similar Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(18) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of reincorporating the Company in a new jurisdiction;
(19) any agreement that provides customary registration rights to the equityholders of the Company or any parent of the Company and the performance of such agreements; and
(20) transactions between the Company or any Restricted Subsidiary and any person that is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or any direct or indirect parent, as the case may be, from a financial point of viewon any matter involving such other Person.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of So long as any of the Company's Securities remain outstanding, neither the Issuer nor any of its Subsidiaries will directly or indirectly enter into any transaction or series of related transactions involving aggregate consideration in excess of $ 1,000,000 in any fiscal year with any Affiliate or holder of 105% or more of the Common Equity any class of Capital Stock of the Company Issuer other than the Series C Preferred Stock (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- ) except for any Affiliate Transaction transaction (including any loans or advances by or to any Affiliate) (i) the terms of which are fair and reasonable to the Issuer or such Subsidiary, as the case may be, and are at least as favorable as the terms which could be obtained by the Company Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or Affiliate of the Issuer and (ii) which has been approved by a majority of the Issuer's directors (including a majority of the Issuer's independent directors, if any) in the exercise of their fiduciary duties; PROVIDED that any such transaction shall be conclusively deemed to be on terms which are fair and reasonable to the Issuer or any of its Subsidiaries and on terms which are at least as favorable as the terms which could be obtained on an arms length basis with Persons who are not such a holder, an Affiliate of such holder or Affiliate of the Company Issuer if such transaction is approved by a majority of the Board of Directors (including a majority of the Issuer's independent directors, if any). If the Issuer or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into a transaction with an Affiliate Transaction unless (ior a series of related transactions with Affiliates related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million, the Company shall have (x) obtained Issuer or such Subsidiary, as the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor case may be, shall, prior to the effect that such Affiliate Transaction is fair consummation thereof, obtain a favorable opinion as to the Company fairness of such transactions to the Issuer or such Restricted the relevant Subsidiary, as the case may be, from a financial point of view from an independent nationally recognized investment banking firm and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered deliver same to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding Trustee. This covenant does not apply to: (a) any transaction between the Issuer and any of its Wholly Owned Subsidiaries or between any of its Wholly Owned Subsidiaries; PROVIDED that such transactions are not prohibited by other provisions of this Indenture; (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment not otherwise permitted under prohibited by Section 3.04, 3.10; (ivc) any transaction pursuant to an agreement in existence on the date of the Indenture and included as an exhibit to the Issuer's Exchange Act Reports; (d) transactions between the Issuer and the 1984 ESOP, 1989 ESOP or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company employee benefit plan; (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (ve) any transaction between one with a Subsidiary or more Restricted Subsidiaries a Permitted Joint Venture which would constitute a transaction with an Affiliate solely because the Issuer or a Subsidiary owns an equity interest in or otherwise controls such Subsidiary or a Permitted Joint Venture; and one (f) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors or more Unrestricted Subsidiaries where all employees of the payments to, Issuer or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to any Subsidiary of the Company or a Restricted SubsidiaryIssuer as determined in good faith by the Issuer's Board of Directors.
Appears in 1 contract
Sources: Indenture (Weirton Steel Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loandirectly or indirectly, advancein one transaction or a series of related transactions, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, from or enter into or amend any contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of their respective Affiliates (each of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachforegoing, an "Affiliate Transaction"), --------------------- except for any unless (i) such Affiliate Transaction is on terms that are no less favorable to the terms of which are at least as favorable as Company or the terms which relevant Restricted Subsidiary than those that could be have been obtained in a comparable transaction by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on Subsidiary with an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of unrelated Person and (ii) the Company or any of delivers to the Company's Subsidiaries.
Trustee (b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (ia) with respect to any Affiliate Transaction (or series of related transactions) involving aggregate payments in excess of $1.0 million, an Officers' Certificate certifying that such Affiliate Transaction involving or having complies with clause (i) above and a value of more than $10 million, the Company shall have (x) obtained the approval Secretary's Certificate which sets forth and authenticates a resolution that has been adopted by a vote of a majority of the Board of Disinterested Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that approving such Affiliate Transaction is fair or states that there are no Disinterested Directors, in which case an opinion, as described in clause (b), shall be required and (b) with respect to any Affiliate Transaction (or series of related transactions) involving aggregate payments in excess of $5.0 million, the certificates described in the preceding clause (a) and an opinion as to the fairness to the Company or such Restricted Subsidiary, as the case may be, Subsidiary from a financial point of view and (ii) with respect issued by an Independent Financial Advisor; provided, however, that the following shall not be deemed to any such be Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include Transactions: (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among (1) the Company and one or more Restricted Subsidiaries or between or among (2) Restricted Subsidiaries (Subsidiaries, provided, -------- howeverin each case, that no such transaction shall involve any other Affiliate of the ------- Company (other than any Person that is such an Unrestricted Affiliate solely because of the control of such Person by the Company) owns Capital Stock of any such Restricted Subsidiary; (ii) transactions between the Company or any Restricted Subsidiary to and any qualified employee stock ownership plan established for the extent benefit of the applicable amount constitutes a Restricted Payment Company's employees, or the establishment or maintenance of any such plan; (iii) reasonable director, officer and employee compensation and other benefit, and indemnification, arrangements approved by the Board of Directors; (iv) transactions permitted by this Indenture)) and Section 1011 hereof; (v) the existence of, or the performance by the Company or any transaction Restricted Subsidiary under, the Management Services Agreement with respect to fees of up to $600,000 per year and any other agreement in effect on the Issue Date, as such agreement is in effect on the Issue Date or as amended thereafter in any manner no less favorable to the Holders; (vi) prepaid expenses and loans or advances to employees or directors of the Company or any of its Subsidiaries in the ordinary course of business; (vii) the pledge of Capital Stock of Unrestricted Subsidiaries to support the Indebtedness thereof; (viii) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Company and/or one or more Restricted Subsidiaries Subsidiaries, on the one hand, and one or more Unrestricted Subsidiaries where all of the payments to, or any other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to Person with which the Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Company or such Subsidiaries are or could be part of a consolidated group for tax purposes, on the other hand, which payments by the Company and its Restricted SubsidiarySubsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis; and (ix) the issuance and sale by the Company to its Affiliates of Qualified Stock.
Appears in 1 contract
Sources: Indenture (Scovill Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), having a value greater than $10.0 million other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $50.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding (a) and (b) above The restrictions set forth in this covenant shall not apply to:
(1) loans, an Affiliate Transaction will not include advances and payments of reasonable fees and compensation paid (iwhether in cash or the issuance of Capital Stock of the Company) any contract, agreement or understanding with, or for the benefit to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company in their capacities the ordinary course of business or as such) that has been approved determined in good faith by the Company’s Board of Directors or senior management;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided that such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the CompanyIssue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement, taken as a whole, is not materially more disadvantageous to the Holders than the original agreement as in effect on the Issue Date;
(ii4) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction;
(5) any employment, consulting and severance arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(6) the issuance and sale of Qualified Capital Stock issuances to Stock;
(7) Permitted Investments and Restricted Payments permitted by this Indenture; and
(8) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the Company and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or its Subsidiaries pursuant to plans approved by the stockholders operation of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more the Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiarySubsidiaries.
Appears in 1 contract
Sources: Indenture (Rackspace Hosting, Inc.)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Company and the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, to or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's ’s Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm’s-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's ’s Subsidiaries.. 66
(b) In addition, the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless unless:
(i) with respect to any such Affiliate Transaction involving or having a value of more than $10 1.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's ’s disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view and view, and
(ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include include:
(i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of of, employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, ,
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, ,
(iii) any Restricted Payment otherwise permitted under Section 3.044.07 hereof or any Permitted Investment (other than a Permitted Investment referred to in clause (b) of the definition thereof, except as permitted by clause (iv) below),
(iv) any transaction between or among (A) the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries, so long as no such Restricted Subsidiaries are members of the Secured Group or (B) any members of the Secured Group (provided, -------- however, that in each case no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and ),
(v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary,
(vi) issuances, sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between Restricted Subsidiaries and Unrestricted Subsidiaries of the Company, and
(vii) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, the Issuer or any Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) Prior to the Effective Date, the Company will shall not enter into or permit to exist any Affiliate Transactions other than in connection with the consummation of the Transactions, the BWAY Assumption and the transactions contemplated thereby.
(b) From and after the Effective Date, the Company shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (an “Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holdersTransaction”), other than (x) Affiliate Transactions permitted under paragraph (c) below and (y) Affiliate Transactions entered into on terms that are fair and reasonable to, and in a single transaction or series of related transactions (eachthe best interests of, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company’s Board of Directors; provided, however, that for a comparable transaction or series of related transactions with an aggregate value of $5.0 million or more, at the Company’s option, (i) such determination shall be made on an arm's length basis with Persons who are not such in good faith by a holder, an Affiliate majority of such a holder or an Affiliate the disinterested members of the Board of the Directors of the Company or any of the Company's Subsidiaries.
(bii) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of or any such Restricted Subsidiary party to such Affiliate Transaction shall have received a majority of the Company's disinterested directors favorable opinion from a nationally recognized investment banking, accounting or obtained an opinion of a qualified independent financial advisor to the effect appraisal firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary; provided, as the case may befurther, from that for a financial point transaction or series of view and (ii) related transactions with respect to any such Affiliate Transaction involving or having a an aggregate value of more than $50.0 million15.0 million or more, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an shall have received a favorable opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking, accounting or appraisal firm that such Affiliate Transaction is fair from a financial point of view to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding The foregoing restrictions shall not apply to:
(a1) reasonable fees and (b) above compensation paid to, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or any Subsidiary of the Company as determined in good faith by the Company’s Board of Directors;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries generally or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(3) transactions effected as part of a Qualified Receivables Transaction;
(4) any agreement as in their capacities effect as suchof the Effective Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) that has been in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Effective Date;
(5) Restricted Payments permitted by this Indenture;
(6) any Permitted Investment; and any loan, advance or other payment described in the third paragraph of Section 4.03;
(7) transactions permitted by, and complying with, the provisions of Article Five hereof;
(8) any payment, issuance of securities or other payments, awards or grants, in cash or otherwise, pursuant to, or the funding of, employment arrangements and Plans approved by the Board of Directors of the Company;
(9) the grant of stock options or similar rights to employees and directors of the Company and its Subsidiaries pursuant to Plans and employment contracts approved by the Board of Directors of the Company;
(10) loans or advances to officers, (ii) Capital Stock issuances to directors, officers and directors or employees of the Company or its Restricted Subsidiaries pursuant to plans not in excess of $5.0 million at any one time outstanding;
(11) the granting or performance of registration rights under a written registration rights agreement approved by the stockholders Board of Directors of the Company;
(12) transactions with Persons solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are treated no more favorably than holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary generally;
(iii13) any Restricted Payment otherwise permitted under Section 3.04agreement to do any of the foregoing;
(14) the payment of fees, (iv) reimbursements, indemnifications and other amounts pursuant to any transaction agreements between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided▇▇▇▇▇ & Company, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary L.P. with respect to the extent payment of investment banking and annual financial advisory fees;
(15) the applicable amount constitutes Transactions;
(16) execution, delivery and performance of a Restricted Payment permitted by tax sharing agreement with respect to Holding Related Taxes;
(17) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries which are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or senior management thereof or are on terms no less favorable as might reasonably have been obtained at such time from an unaffiliated party; and
(18) any transaction in the ordinary course of business, or approved in good faith by a majority of the Board of Directors, between the Company or any Restricted SubsidiarySubsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity.
Appears in 1 contract
Sources: Indenture (Bway Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee guar- ▇▇▇▇▇ or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate --------------------- Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 5 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 25 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04the "Limitations on Restricted Payments" covenant, (iv) any transaction between or among the Company and one or more Restricted Re- -28- stricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the Company ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loandirectly or indirectly, advancein one transaction or a series of related transactions, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or of its assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any unless: ---------------------
(1) such Affiliate Transaction is on terms that are no less favorable to the terms of which are Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at least as favorable as the terms which could be obtained such time on an arm's-length basis by the Company or such Restricted Subsidiary, as the case may be, in Subsidiary from a comparable transaction made on an arm's length basis with Persons who are Person that is not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.such Restricted Subsidiary; and
(b2) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless delivers to the Trustee:
(iA) with respect to any such Affiliate Transaction involving or having a value aggregate consideration in excess of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect Officers' Certificate certifying that such Affiliate Transaction is fair complies with clause (1) above and a Secretary's Certificate which sets forth and authenticates a resolution that has been adopted by the Independent Directors approving such Affiliate Transaction; and
(B) with respect to any Affiliate Transaction involving aggregate consideration of $25.0 million or more, the certificates described in the preceding clause (A) and a written opinion as to the fairness of such Affiliate Transaction to the Company or such Restricted Subsidiary, as the case may be, Subsidiary from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee issued by an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of viewIndependent Financial Advisor.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will The foregoing restrictions shall not include apply to:
(i1) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among (A) the Company and one or more Restricted Subsidiaries or between or among (B) Restricted Subsidiaries (Subsidiaries; provided, -------- howeverin each case, that no such transaction shall involve any other Affiliate of the ------- Company -------- (other than an Unrestricted Subsidiary another Restricted Subsidiary) owns Equity Interests of any such Restricted Subsidiary;
(2) employment contracts, "know-how" agreements, compensation (including stay-on and incentive bonus) arrangements and loans to officers and employees, in each case in the extent form existing on the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between Issue Date or representing one or more Restricted Subsidiaries and one amendments, modifications, restatements, supplements, extensions, renewals, refinancings, refunds or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, replacements thereof on terms not materially less favorable to the Company or a Restricted Subsidiary, as applicable, than those contained in such contracts, agreements, arrangements or loans in the form existing as of the Issue Date;
(3) indemnities of officers, directors and employees of the Company or any of its Subsidiaries permitted by its certificate of incorporation, bylaws or statutory provisions;
(4) other director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other incentive or benefit plans) and indemnification arrangements, in each case approved by the Independent Directors;
(5) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Company and/or one or more Subsidiaries, on the one hand, and any other Person with which the Company or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Company or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Company and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(6) loans and advances permitted by clause (3) of the definition of "Permitted Investments";
(7) Restricted Payments of the type described in clause (1), (2), (3) or (4) of the definition of "Restricted Payment" and which are made in accordance with Section 4.11.;
(8) any transaction with an Affiliate where the only consideration paid by the Company or any Restricted Subsidiary is Qualified Equity Interests;
(9) any other issuance or sale of Qualified Equity Interests;
(10) transactions in connection with Permitted Receivables Financings; or
(11) any agreement as disclosed in the Offering Memorandum as in effect on the Issue Date or any extensions or renewals thereof.
Appears in 1 contract
Sources: Indenture (Us Oncology Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (c) of this Section and (y) Affiliate Transactions on terms taken as a whole that are no less favorable to the terms Company or the relevant Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of which are at least as favorable as the terms which could Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of related Affiliate Transactions) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be obtained approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding The restrictions set forth in paragraphs (a) and (b) above , an Affiliate Transaction will of this Section 4.11 shall not include apply to:
(i1) any contractemployment, compensation, benefit or indemnification agreement or understanding witharrangement (and any payments or other transactions pursuant thereto) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business with an officer, employee or for director and any transactions pursuant to stock option plans, stock ownership plans and employee benefit plans or arrangements;
(2) transactions between or among the benefit of, Company and/or any of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary as a result of such transaction);
(3) any agreement as in effect as of the Issue Date or plan for any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement taken as a whole is not more disadvantageous to the benefit Holders of Notes in any material respect than the original agreement as in effect on the Issue Date;
(4) payment of fees to directors who are not employees of the Company;
(5) sales of Capital Stock (other than Disqualified Capital Stock) to Affiliates of the Company;
(6) loans or advances to employees or consultants in the ordinary course of business of the Company or its Subsidiaries generally Restricted Subsidiaries;
(7) in their capacities the case of joint ventures in which the Company or any Restricted Subsidiary has an interest, so long as such) the other parties to the joint venture that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees are not Affiliates of the Company or its Subsidiaries pursuant to plans approved by the stockholders own at least 50% of the Companyequity of such joint venture, (iii) transactions between such joint venture and the Company or any Restricted Payment otherwise permitted under Section 3.04, Subsidiary;
(iv) any transaction between or among the Company and one or more 8) Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment Payments permitted by this Indenture); or
(9) transactions between a Receivables Subsidiary and (v) any transaction between one Person in which the Receivables Subsidiary has an Investment or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all any other transactions in connection with a Receivables Program of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Dan River Inc /Ga/)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (c) below and (y) Affiliate Transactions on terms that are no less favorable to the terms Company or the relevant Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of which the Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of related Affiliate Transactions that are at least as favorable as part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $5.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions as part of a common plan) with respect to any such Affiliate Transaction involving or having a value that involves an aggregate Fair Market Value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor.
(c) Notwithstanding The restrictions set forth in paragraphs (a) and (b) above of this Section 4.11 shall not apply to:
(1) reasonable and customary directors' fees, an Affiliate Transaction will not include (i) indemnification and similar arrangements, employees' salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any contractofficer, agreement director or understanding with, or for the benefit of, or plan for the benefit of employees employee of the Company or its Subsidiaries generally (any Restricted Subsidiary entered into in their capacities the ordinary course of business and payments under any indemnification arrangements permitted by applicable law, as such) that has been approved determined in good faith by the Company's Board of Directors of the Company, Directors;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries (provided, -------- however, no Subsidiaries; provided that such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted transactions are not otherwise prohibited by this Indenture);
(3) any agreement as in effect as of the Issue Date or any amendment, supplement, modification, restatement, renewal, replacement, refinancing, increase, refunding, extension, substitution or restructuring thereof or thereto or any transaction contemplated by any of the foregoing, so long as any such amendment, supplement, modification, restatement, renewal, replacement, refinancing, increase, refunding, extension, substitution or restructuring is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) payments to permit payments for NACG Preferred or Holdings' employees and officers and directors similar to those provided in clause (1) above and payments in an amount not to exceed, in the aggregate, in any calendar year the sum of (x) $1.0 million and (vy) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of amounts payable by the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, Company to the Company Designated Active Sponsors (as defined in the Advisory Services Agreement) in connection with any Future Corporate Transaction or a Restricted Subsidiary.any Future Securities Transaction (in each case as defined in the Advisory Services Agreement) to the Equity Investors for advisory services and transaction fees pursuant to the Advisory Services Agreement;
(5) loans or advances to directors, officers or employees in the ordinary course of business in an amount not to exceed $1.0 million per fiscal year;
Appears in 1 contract
Sources: Indenture (Nacg Finance LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any (each of the Company's Subsidiaries foregoing, an “Affiliate Transaction”) involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of $15.0 million, unless
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company (including any Affiliates of such holders), or the relevant Restricted Subsidiary than those that would have been obtained in a single comparable transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted SubsidiarySubsidiary with an unrelated Person, and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 million, a Board Resolution adopted by the majority of the members of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (a) above.
(b) The foregoing provisions shall not apply to the following:
(1) transactions between or among the Company or any of the Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate result of such a holder transaction):
(2) Restricted Payments permitted by Section 10.08 and the definition of “Permitted Investments”;
(3) transactions pursuant to compensatory, benefit and incentive plans and agreements with officers, directors, managers or an Affiliate employees of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of Subsidiaries approved by a majority of the Board of Directors of the Company (or a parent company thereof) in good faith;
(4) the payment of reasonable and (y) either obtained the approval of a majority customary fees and reimbursements paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Company's disinterested directors , any of its direct or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to indirect parent companies or any Restricted Subsidiary;
(5) transactions in which the Company or such any Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered delivers to the Trustee a letter from an opinion of a qualified independent financial advisor to the effect Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Company or such Restricted SubsidiarySubsidiary from a financial point of view or meets the requirements of Section 10.11(a)(1);
(6) payments or loans (or cancellations of loans) to officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements with such employees or consultants that are, in each case, approved by the Company (or a parent company thereof) in good faith;
(7) any agreement, instrument or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined by the Company in good faith, as evidenced by an Officer’s Certificate);
(8) the existence of, or the performance by the Company or any of the Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or its equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (8) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the Holders in any material respect than the terms of the original agreement in effect on the Issue Date as reasonably determined in good faith by the Company, as evidenced by an Officer’s Certificate;
(9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services (including pursuant to joint venture agreements), in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Company (or a parent company thereof), or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(10) the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(12) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company or any of its Subsidiaries, so long as such transaction is with (or is offered to) all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally;
(13) any transaction in which the only consideration paid by the Company or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Company;
(14) transactions with any joint venture engaged in a Similar Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(15) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of reincorporating the Company in a new jurisdiction;
(16) any agreement that provides customary registration rights to the equityholders of the Company or any parent of the Company and the performance of such agreements;
(17) transactions between the Company or any Restricted Subsidiary and any person that is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or any direct or indirect parent, as the case may be, from a financial point of view.on any matter involving such other Person; and
(c18) Notwithstanding (a) credit support arrangements where the Company is not required to make cash payments to the credit support provider other than the reimbursement of direct obligations and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees expenses of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarycredit support provider.
Appears in 1 contract
Sources: Indenture (Winnebago Industries Inc)
Limitations on Transactions with Affiliates. Until transaction (including, without limitation, the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(apurchase, sale, lease or exchange of any property or the rendering of any service) the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for of its Affiliates (other than transactions between the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate Company and a Wholly Owned Subsidiary of the Company or any Affiliate of any among Wholly Owned Subsidiaries of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a Person that is not such an Affiliate; provided, however, that for a holder, an Affiliate transaction or series of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction related transactions involving or having a value of more than $10 million2,000,000 or more, the Company shall have (x) obtained the approval of such determination will be made in good faith by a majority of the Board members of Directors the board of directors of the Company and (y) either obtained the approval of by a majority of the disinterested members of the board of directors of the Company's disinterested , if any; provided, further, that for a transaction or series of related transactions involving value of $10,000,000 or more, the board of directors or obtained of the Company has received an opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking firm that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction to the Company or such Subsidiary. The foregoing restrictions will not include apply to (i1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees obligation of the Company under the Monitoring and Oversight Agreements (provided that each amendment of any of the foregoing agreements shall be subject to the limitations of this covenant) or any employment, noncompetition or confidentiality agreement with any officer of the Company, (3) reasonable and customary investment banking, financial advisory, commercial banking and similar fees and expenses paid to BT Securities Corporation and its Subsidiaries generally Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.03, (5) any issuance of securities, or other payments, awards or grants in their capacities as such) that has been cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii6) Capital Stock issuances loans or advances to directors, officers and employees in the ordinary course of business of the Company or any of its Subsidiaries pursuant to plans approved by the stockholders of the Companyconsistent with past practices, (iii7) payments made in connection with any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between acquisitions or among dispositions by the Company and one or more Restricted its Subsidiaries or between or among Restricted Subsidiaries which acquisitions and dispositions are disclosed in the Offering Memorandum, including fees to Hick▇ ▇▇▇e, and (provided, -------- however, no such transaction shall involve any other Affiliate 8) the issuance of Capital Stock of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureDisqualified Capital Stock)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.. 48 -41-
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate Transaction") unless the Affiliate Transaction is on terms that are 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. Prior to the consummation by the Company or any Restricted Subsidiary of any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as the terms which could be obtained by similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of:
(i) $5.0 million, the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained obtain the approval of its Board of Directors (including a majority of the independent directors) of such transaction or series of related transactions evidenced by a Board Resolution stating that such Board of Directors of the Company and (y) either obtained the approval of including a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect directors) has determined that such Affiliate Transaction is fair to transaction complies with the foregoing provisions, and
(ii) $10.0 million, the Company or such Restricted Subsidiary, as the case may be, from shall obtain a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered favorable opinion as to the Trustee an opinion fairness of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor, and file it with the Trustee.
(cb) Notwithstanding The restrictions set forth in paragraph (a) and (b) above , an Affiliate Transaction will shall not include apply to:
(i) any contractemployment, agreement stock option, consulting, agency or understanding withother compensation or benefit plans, or for the benefit of, or plan for the benefit of employees arrangements and agreements of the Company or its Subsidiaries generally (any Restricted Subsidiary in their capacities accordance with the Annual Incentive Plan or the Equity Incentive Plan or as such) that has been approved by a majority of the disinterested members of the Board of Directors (or a majority of the Company, disinterested members of a committee thereof);
(ii) Capital Stock issuances reasonable fees and compensation paid to directors, officers and employees reasonable indemnity provided on behalf of officers, directors, employees, consultants or agents, of the Company or its Subsidiaries pursuant to plans approved any Restricted Subsidiary as determined in good faith by the stockholders Company's Board of the Company, Directors or senior management;
(iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any Restricted Subsidiaries or exclusively between or among Restricted Subsidiaries (providedSubsidiaries, -------- however, no provided such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted transactions are not otherwise prohibited by this Indenture); and
(iv) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, Payments permitted to the Company or a Restricted Subsidiarybe made pursuant to Section 4.7 hereof.
Appears in 1 contract
Sources: Indenture (Labranche & Co Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, not and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, conduct any loan, advance, guarantee business or capital contribution to, enter into any transaction or series of transactions with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder their Affiliates involving aggregate consideration in excess of 10% or more of the Common Equity of the Company $1.0 million (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction")) other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are not materially less favorable to the Company than those that could have been obtained in a comparable transaction on an arm's-length basis from a Person not an Affiliate of the Company. With respect to all Affiliate Transactions involving aggregate payments equal to or in excess of $5,000,000 and less than $10,000,000, --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of delivered a majority resolution of the Board of Directors of the Company and set forth in an officers' certificate to the Trustee certifying that such transaction or series of transactions complies with clause (y) either obtained the approval above. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a majority common plan) involving aggregate payments or other property with a fair market value in excess of $10,000,000, the Company's disinterested directors Company or obtained an opinion of a qualified independent financial advisor such Restricted Subsidiary, as the case may be, shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view from an investment bank of national standing with an expertise in underwriting non-investment grade debt securities and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i) any employment agreement or stock option agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; (ii) transactions between or among the Company and its Restricted Subsidiaries; (iii) transactions permitted by Section 4.10; (iv) the payment of reasonable fees to directors of the Company or its Restricted Subsidiaries; (v) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans of the Company entered into in the ordinary course of business and approved by the Board of Directors, (vi) transactions exclusively between or among the Company and/or its Wholly Owned Restricted Subsidiaries; provided that -------- such transactions are not otherwise prohibited by this Indenture, transactions exclusively between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment in connection with respect a Qualified Receivable Transaction; (vii) any agreements as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such Affiliate Transaction involving amendment or having a value replacement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (viii) reasonable fees and related expenses paid to the Principals and their Affiliates for management, consulting and advisory services as determined in good faith by the Company's Board of more than $50.0 million, Directors or senior management; (ix) payments by the Company shall have or any of its Restricted Subsidiaries to the Principals and their Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement as in effect as of the Issue Date or any amendment thereto, or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (x) obtained payments or loans to employees or consultants which are approved by the approval Board of a majority Directors of the Company in good faith; (xi) transactions permitted by, and complying with the provisions of Section 5.01; and (xii) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company and (y) delivered to or the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding withsenior management thereof, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities are on terms at least as such) that has favorable as might reasonably have been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no obtained at such transaction shall involve any other Affiliate of the ------- Company (other than time from an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiaryunaffiliated party.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, make any loan, advance, guarantee directly or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or indirectly enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding without limitation, an "the purchase, sale, lease or exchange of assets, property, or services) with any Affiliate Transaction"of the Company (except that the Company and any of its Subsidiaries may enter into any transaction or series of related transactions with any other Subsidiary of the Company without any limitation under this covenant), --------------------- except for any Affiliate Transaction the unless:
(i) such transactions or series of related transactions are on terms of which that are at least as no less favorable as the terms which could be obtained by to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction made on an arm's length basis dealing with Persons who are a Person that is not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.Affiliate;
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (iii) with respect to any such Affiliate Transaction transaction or series of related transactions involving or having a value aggregate payments in excess of more than $10 million, 500,000 the Company shall have delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (xi) obtained the approval of above and has been approved by a majority of the Board of Directors of the Company and Company; and
(y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (iiiii) with respect to any such Affiliate Transaction transaction or series of related transactions involving or having a value aggregate payments in excess of more than $50.0 million2,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered delivers to the Trustee an a written opinion of a qualified independent financial advisor nationally- recognized investment banking firm to the effect that such Affiliate Transaction is the transaction or series of transactions are fair to the Company or such Restricted Subsidiary, as the case may be, (from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will to the Company or such Subsidiary. The limitations set forth in this paragraph shall not include apply to (i) transactions entered into pursuant to any contractagreement already in effect on the date of this Indenture, agreement (ii) any employment agreement, stock option, employee benefit, indemnification, compensation, business expense reimbursement or understanding withother employment-related agreement, or for the benefit of, arrangement or plan for the benefit of employees of entered into by the Company or any of its Subsidiaries generally either (A) in their capacities as suchthe ordinary course of business and consistent with the past practice of the Bank or such other Subsidiary or (B) that has been approved which agreement, arrangement or plan was adopted by the Board of Directors of the Company, (iiiii) Capital Stock issuances residential mortgage, credit card and other consumer loans to directorsan Affiliate who is an officer, officers and employees director or employee of the Company or any of its Subsidiaries pursuant to plans approved by and which comply with the stockholders applicable provisions of 12 U.S.C. ' 1468(b) and any rules and regulations of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04OTS thereunder, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment Payments permitted by this Indenture)) and the Indenture or, (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all series of transactions in which the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarytotal amount involved does not exceed $250,000.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (c) of this Section and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.5 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 7.5 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding The restrictions set forth in paragraphs (a) and (b) above , an Affiliate Transaction will of this Section 4.11 shall not include apply to:
(i1) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided, -------- however, no such transaction shall involve 3) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(4) Restricted Payment Payments permitted by this Indenture)) and ; and
(v5) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments tosale, conveyance or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transfer of Receivables and other related assets customarily transferred without charge, to the Company or in a Restricted SubsidiaryQualified Securitization Transaction.
Appears in 1 contract
Sources: Indenture (Mobile Mini Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or in any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eacheach of the foregoing, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $20.0 million unless:
(1) such Affiliate Transaction, --------------------- except for any Affiliate Transaction as determined by the Company in good faith, is on terms of which that are at least as not materially less favorable as to the terms which could be Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made Subsidiary with an unrelated Person on an arm's arm’s-length basis basis;
(2) the Company delivers to the Trustee an Officer’s Certificate with Persons who are respect to such Affiliate Transaction stating that the Company has approved such Affiliate Transaction and stating that such Affiliate Transaction complies with clause (1) above; and
(3) for any transaction or series of related transactions with an aggregate value of $50.0 million or more, such Affiliate Transaction has been approved by a majority of the disinterested members of the board of directors of the Company, if any. The foregoing restrictions will not such a holderapply to:
(1) payment of reasonable fees and compensation paid to, an Affiliate of such a holder or an Affiliate loans made to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary (including any employment agreements, employee benefit plans or indemnification agreements entered into with such persons) as determined, in good faith, by the Company;
(2) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the Company's Subsidiaries.;
(b3) In additionany agreement as in effect as of the Spin-Off Date (including the Separation and Distribution Documents) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is, as determined by the Company, not more materially disadvantageous to the Company will notor such Restricted Subsidiary when taken as a whole than the original agreement as in effect on the Spin-Off Date or as described in the Offering Memorandum;
(4) Permitted Investments and Restricted Payments permitted by this Indenture;
(5) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and will not cause otherwise in compliance with the terms of this Indenture which are, in the determination of the Company, fair to the Company and its Restricted Subsidiaries or permit are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(6) commercially reasonable transactions between the Company or a Restricted Subsidiary and any joint venture or any Unrestricted Subsidiary and otherwise in compliance with the terms of this Indenture which are, in the determination of the Company at the time of entry into such transactions, fair to the Company and its Restricted Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(7) the issuance or sale of any Equity Interests of the Company;
(8) transactions with respect to which the Company or any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor delivers to the effect Trustee a letter from an independent investment banking or accounting firm or any third party appraiser of national or international standing stating that such Affiliate Transaction transaction is fair to the Company or such Restricted Subsidiary, as the case may be, Subsidiary from a financial point of view and or meets the requirements of clause (ii1) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors preceding paragraph;
(9) transactions with Persons that are Affiliates of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to solely because the Company or any of its Restricted Subsidiaries owns an Equity Interest in or otherwise controls such Restricted Subsidiary, as the case may be, from a financial point of view.Person; and
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv10) any transaction between related to or among in connection with the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryTransactions.
Appears in 1 contract
Sources: Indenture (KLX Inc.)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that could reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to:
(i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors;
(ii) 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 this Indenture;
(iii) any agreement as in effect or entered into as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments and Permitted Investments permitted by this Indenture;
(v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of paragraph (a) above;
(vi) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to or the funding of, employment arrangements, stock options and stock ownership plans or similar employee benefit plans approved by Board of Directors of the Company in good faith and loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith;
(vii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case on ordinary business terms and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party;
(iiviii) fees payable to Apollo pursuant to the Management Agreement as in effect on the Issue Date or pursuant to any amendment, restatement or replacement thereof to the extent that such amendment, restatement or replacement does not provide for any fees or other payments in excess of those set forth in the Management Agreement as in effect on the Issue Date;
(ix) any contribution to the capital of the Company by any Permitted Holder, or any sales of Capital Stock issuances of the Company to directors, officers any Permitted Holder; and
(x) any tax sharing agreement or arrangement and employees of payments pursuant thereto among the Company and its Subsidiaries and any other Person with which the Company or its Subsidiaries pursuant is required or permitted to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between file a consolidated tax return or among with which the Company and one or more any of its Restricted Subsidiaries is or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate could be part of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted consolidated group for tax purposes in amounts not otherwise prohibited by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Salt Holdings Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company will The Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of the greater of (i) $25.0 million and (ii) 7.5% of Consolidated EBITDA of the Issuer and the Restricted Subsidiaries, unless:
(1) such Affiliate Transaction is on terms, taken as a whole, that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Issuer, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction Transaction or series of related transactions (eachAffiliate Transactions involving aggregate payments or consideration in excess of $50.0 million, an "Affiliate Transaction"), --------------------- except for any a resolution adopted by a majority of the members of the Board of the Issuer and a majority of the disinterested members of the Board of the Issuer approving such Affiliate Transaction and an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing provisions shall not apply to the following:
(1) (a) transactions between or among the Issuer and a Restricted Subsidiary or between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result of such transaction and (b) any merger, consolidation or amalgamation of the Issuer with or into any Parent Entity; provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer or another Parent Entity and such merger, consolidation or amalgamation is otherwise consummated in compliance with the terms of which are at least as favorable as this Indenture and effected for a bona fide business purpose;
(2) Restricted Payments permitted by Section 10.10 (other than pursuant to Section 10.10(b)(13)(F)) and the terms which could be obtained definition of “Permitted Investments;”
(3) the payment of indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by the Company Board of the Issuer;
(4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided to or such on behalf of, or for the benefit of, former, current or future officers, directors, employees, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted SubsidiarySubsidiary or any Parent Entity;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction made by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm's ’s length basis with Persons who basis;
(6) any agreement or arrangement as in effect or contemplated as of the Issue Date (other than any agreement or arrangement of the type described in clause (3) above), or any amendment thereto (so long as any such amendment is not materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date);
(7) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or any Parent Entity) is a party as of the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries (or such Parent Entity) 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 (7) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(8) [reserved];
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business or that are consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board or the senior management of the Issuer, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been obtained at such a holdertime from an unaffiliated party;
(10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, an Affiliate current or future director, officer, manager, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(11) transactions in connection with Permitted Receivables Financings;
(12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by the Board of the Issuer or the senior management of the Issuer in good faith;
(13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) (including salary or guaranteed payments and bonuses) which, in each case, are approved by the Board of the Issuer or the senior management of the Issuer in good faith;
(A) investments by Permitted Holders in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Permitted Holders in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(15) transactions with a holder or Person that is an Affiliate of the Company Issuer arising solely because the Issuer or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary toowns any Equity Interest in, enter or controls, such Person;
(16) any lease entered into between the Issuer or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other hand, which is approved by the Board of the Issuer or the senior management of the Issuer in good faith;
(17) intellectual property licenses entered into in the ordinary course of business or consistent with past practice;
(18) transactions between the Issuer or any Restricted Subsidiary and any other Person that would constitute an Affiliate Transaction unless (i) with respect to any solely because a director of such Affiliate Transaction involving or having other Person is also a value of more than $10 million, the Company shall have (x) obtained the approval of a majority director of the Board of Directors Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Issuer or such Restricted SubsidiaryParent Entity, as the case may be, from a financial point of view and (ii) with respect to on any matter including such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.other Person;
(c19) Notwithstanding pledges of Equity Interests of Unrestricted Subsidiaries;
(a20) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved payments by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers Issuer and employees of the Company or its any Parent Entity and their respective Subsidiaries pursuant to plans approved tax sharing agreements among the Issuer and any Parent Entity and their respective Subsidiaries on customary terms; provided that such payments shall not exceed the excess (if any) of the amount of taxes that the Issuer and its Subsidiaries would have paid on a stand-alone basis over the amount of such taxes actually paid by the stockholders Issuer and its Subsidiaries directly to governmental authorities; and
(21) payments to and from, and transactions with, any joint ventures entered into in the ordinary course of the Companybusiness or consistent with past practice (including, (iii) without limitation, any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenturecash management activities related thereto)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Ww International, Inc.)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(aA) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including the purchase, make any loansale, advance, guarantee lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than:
(i) Affiliate Transactions permitted by Section 4.12(B); and
(ii) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary. With respect to Affiliate Transactions (other than those described in Section 4.12(B)) completed in any fiscal quarter of the Company, as the case Company shall deliver an Officers’ Certificate to the Trustee within 10 Business Days of the end of such fiscal quarter certifying that such transactions are in compliance with Section 4.12(A)(ii) (it being understood that such officer may berely on a third-party expert in arriving at any such determination). All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $500,000 shall be approved by a majority of the members of the Board of Directors (including a majority of the disinterested members thereof), in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate Fair Market Value of more than $5,000,000, then the Company shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such a holder transaction or an Affiliate series of related transactions.
(B) Notwithstanding anything to the contrary herein, the restrictions set forth in Section 4.12(A) shall not apply to the following:
(i) loans, advances, fees and compensation (including bonuses) paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, Subsidiaries as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (determined in their capacities as such) that has been approved good faith by the Board of Directors of the Company, or senior management;
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries; provided such transactions are not otherwise prohibited by this Indenture;
(provided, -------- however, no such transaction shall involve iii) any other Affiliate agreement as in effect as of the ------- Company (other than an Unrestricted Subsidiary Issue Date or any transaction contemplated thereby and any amendment thereto or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(iv) Restricted Payment Payments permitted by this Indenture)) Indenture and Permitted Investments of the type described in the definition thereof;
(v) any merger or other transaction between one with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all creating a holding company of the payments toCompany;
(vi) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other benefits conferred uponemployment-related agreements, such Unrestricted Subsidiaries are substantially contemporaneously dividended, arrangements or otherwise distributed or transferred without charge, to plans entered into by the Company or a any of its Restricted SubsidiarySubsidiaries in the ordinary course of business; and
(vii) the issuance of Qualified Capital Stock of the Company or receipt of capital contributions from holders of the Company’s Capital Stock.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any Restricted Subsidiary of its Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding without limitation, an "Affiliate Transaction")the sale, --------------------- except for purchase, exchange or lease of assets, property or services) with any Affiliate Transaction of the Company (except that the Company and any of its Subsidiaries may enter into any transaction or series of related transactions with any Subsidiary of the Company without limitation under this covenant) unless: (i) such transactions or series of related transactions is on terms of which that are at least as no less favorable as the terms which could be obtained by to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction made on in an arm's length basis dealing with Persons who are a Person that is not such a holder, an Affiliate or, in the absence of such a holder or comparable transaction, on terms that the relevant Board of Directors determines in good faith would be offered to a Person that is not an Affiliate of the Company or any of the Company's Subsidiaries.
Affiliate; (b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (iii) with respect to any such Affiliate Transaction transaction or series of related transactions involving or having a value aggregate payments in excess of more than $10 million500,000, the Company shall have delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (xi) obtained the approval of above and has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be; and (iii) with respect to any transaction or series of related transaction involving aggregate payments in excess of $2,500,000, or in the event that no members of the relevant Board of Directors are Disinterested Directors with respect to any transaction or series of transactions included in clause (ii), (x) in the case of a transaction involving real property, the aggregate rental or sale price of such real property shall be the fair market sale or rental value of such real property as determined in a written opinion by a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required and (y) in all other cases, the Company delivers to the Trustee a written opinion of a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required to the effect that the transaction or series of transactions are fair to the Company or such Subsidiary from a financial point of view view. The limitations set forth in this paragraph will not apply to (i) transactions entered into pursuant to any agreement already in effect on the Issue Date and any renewals or extensions thereof not involving modifications materially adverse to the Company or any Subsidiary, (ii) normal banking relationships with respect to an Affiliate on an arms' length basis, (iii) any such Affiliate Transaction involving employment agreement, stock option, employee benefit, indemnification, compensation, business expense reimbursement or having a value of more than $50.0 millionother employment-related agreement, arrangement or plan entered into by the Company shall have (x) obtained the approval or any of a majority of its Subsidiaries which agreement, arrangement or plan was adopted by the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted SubsidiarySubsidiary (including a majority of the Disinterested Directors), as the case may be, from a financial point of view.
(civ) Notwithstanding (a) residential mortgage, credit card and (b) above , other consumer loans to an Affiliate Transaction will not include (i) any contractwho is an officer, agreement director or understanding with, or for the benefit of, or plan for the benefit of employees employee of the Company or any of its Subsidiaries generally (in their capacities as suchand which comply with the applicable provisions of 12 U.S.C. Section 1468(b) that has been approved by the Board of Directors and any rules and regulations of the CompanyOTS thereunder, (iiv) Capital Stock issuances to directorsany Restricted Payment or Permitted Payment, officers (vi) any transaction or series of transactions in which the total amount involved does not exceed $125,000, or (vii) services rendered and employees of obligations incurred by the Company or any of its Subsidiaries pursuant to plans approved by existing agreements or agreements between the stockholders Company and/or any of its Subsidiaries and WCC, and/or Affiliates of WCC entered into in connection with the closing of the initial public offering of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary's common stock.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company ------------------------------------------- will not, not and will not cause or permit any Restricted Subsidiary its subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer lease or otherwise dispose transfer any of any property its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, Parent or any of Parent's Affiliates (to the extent Section 8.1(e) remains in effect), any Purchaser, any officer, director, Significant Shareholder, or Affiliate of the Company or any Affiliate of any Purchaser (each of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, foregoing an "Affiliate Transaction"), --------------------- ) except for any (i) Affiliate Transaction the terms of Transactions which are at least as conducted in good faith and on terms that are no less favorable as the terms which could be obtained by to the Company or the relevant subsidiary than those which would have been available at such Restricted Subsidiary, as the case may be, time in a comparable transaction made with an independent third party on an arm's arms' length basis with Persons who are not such and have been approved by a holder, an Affiliate majority of such a holder or an Affiliate the Independent Directors of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (iii) with respect to any such Affiliate Transaction involving (A) a change of control of the Company or having a value substantial change in the Company's equity ownership, (B) a "Rule 13e-3 transaction" (as such term is defined pursuant to Rule 13e-3 under the Exchange Act), (C) a sale of more than $10 millionall or substantially all of the assets of the Company, (D) any transaction contemplated by Section 8.2 of this Agreement or (E) any transaction with substantially similar effects, any such transaction for which the Company has obtained an opinion from a nationally recognized investment banking firm (which firm shall be independent of Purchasers) that such Affiliate -42- Transaction is fair to the shareholders of the Company or such subsidiary from a financial point of view. Notwithstanding anything to the contrary contained herein, the Company may continue and enter into agreements with Parent or any of its subsidiaries relating to sales of materials which are conducted in good faith and on terms that are no less favorable to the Company or the relevant Company subsidiary than those which would have been available at the time in a transaction with an independent third party on an arms' length basis; provided, that, upon the request of any Director, any transaction or proposed series of transactions involving aggregate sales or expenditures in excess of $5.0 million shall have (x) obtained require the approval of a majority of the Board of Directors of the Company and in accordance with clause (yi) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion first sentence of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and this Section 8.1(a).
(iib) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the The Company shall have (x) obtained the approval not enter into any management services or similar type agreement with either Purchasers, Parent or any of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of viewtheir respective Affiliates.
(c) Notwithstanding (a) The Continuing Directors shall have the right to enforce the provisions of this Section 8.4 on behalf of the shareholders of the Company and (b) above Purchasers, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for Parent and the benefit of, or plan Company hereby agree for the benefit of employees the Continuing Directors not to raise any objection to the standing of such Continuing Directors to enforce such provisions before any court of competent jurisdiction. If, notwithstanding the foregoing, any court of competent jurisdiction denies the Continuing Directors standing to assert such claims on behalf of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors shareholders of the Company, (ii) Capital Stock issuances to directorssuch shareholders may enforce this Section 8.4 directly, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiaryas if express third-party beneficiaries hereof.
Appears in 1 contract
Sources: Stock Subscription Agreement (Specialty Products & Insulation Co)
Limitations on Transactions with Affiliates. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 the following covenant will no longer be in effect),
(a) , the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for --------------------- any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 5 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 25 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04the "Limitations on Restricted Payments" covenant, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall -------- ------- involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company involving aggregate payments or any Affiliate consideration in excess of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions $250,000 (each, an "“Affiliate Transaction"”), --------------------- except for any unless:
(1) the Affiliate Transaction is on terms that are no less favorable to the terms of which are at least as favorable as Company or the terms which could be relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted SubsidiarySubsidiary with an unrelated Person and, as if in the case may begood faith judgment of a majority of the disinterested members of the Board of Directors (whose determination shall be conclusive), in a no comparable transaction made on an arm's length basis is available with Persons who are not which to compare such a holderAffiliate Transaction, an such Affiliate of such a holder or an Affiliate of Transaction is otherwise fair to the Company or any the relevant Restricted Subsidiary from a financial point of the Company's Subsidiaries.view; and
(b2) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless delivers to the Trustee:
(ia) with respect to any such Affiliate Transaction or series of related Affiliate Transactions involving or having a value aggregate consideration in excess of more than $10 2.5 million, the Company shall have (x) obtained the approval of a majority resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this covenant and (y) either obtained the approval of that such Affiliate Transaction has been approved by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors of the Company and Company; and
(yb) delivered with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair fairness to the Company or such Restricted Subsidiary, as the case may be, Subsidiary of such Affiliate Transaction from a financial point of viewview issued by an accounting, appraisal or investment banking firm of national standing.
(c) Notwithstanding (a) and (b) above The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.16(a) hereof:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or 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 through a Restricted Subsidiary, an Affiliate Transaction will not include (i) any contract, agreement or understanding withEquity Interest in, or for the benefit ofcontrols, such Person;
(4) payment of reasonable and customary compensation, fees and reimbursement of expenses (pursuant to indemnity arrangements or plan for the benefit otherwise) of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to any director, officer, employee or consultant of the Company or any of its Restricted Subsidiaries generally or to any other Affiliates of the Company;
(6) Restricted Payments that do not violate the provisions of Section 4.09 and Permitted Investments described under clause (16) of the definition of the term Permitted Investments;
(7) payments, advances or loans (or cancellation of loans) to employees or consultants of the Company or any of its Restricted Subsidiaries which are otherwise permitted under this Indenture;
(8) payments made or performance under any agreement as in their capacities effect on the Issue Date or described in the Offering Memorandum and any amendment, modification or replacement of such agreement (so long as such) that has been approved such amendment, modification or replacement is not less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the original agreement as in effect on the Issue Date as determined in good faith by a majority of the disinterested members of the Board of Directors of the Company); and
(9) transactions pursuant to agreements entered into with any Person prior to the time such Person became an affiliate (and, in any event, not in contemplation of any transaction in connection with which such Person would become an affiliate) and any amendment, modification or replacement of such agreements (ii) Capital Stock issuances so long as such amendment, modification or replacement is not less favorable to directorsthe Company and its Restricted Subsidiaries, officers and employees taken as a whole, then the original agreement as in effect on the Issue Date as determined in good faith by a majority of the Company or its Subsidiaries pursuant to plans approved by disinterested members of the stockholders Board of Directors of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any contractRestricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not -------- otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or understanding withany amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvanta- geous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or for such Restricted Subsidiary from a financial point of view or meets the benefit requirements of the first sentence of paragraph (a) above; (vi) the existence of, or plan for the benefit performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or -------- ------- any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after that Issue Date shall only be permitted by this clause to the extent that the terms of any such, amendment or new agreement are not otherwise disadvantageous to the holders of the Securities in any material respect; (vii) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by Board of Directors of the Company in good faith and loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, (ii) Capital Stock issuances clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to directorsthe Company or its Restricted Subsidiaries, officers and employees in the reasonable determination of the Board of Directors of the Company or its Subsidiaries 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; and (x) fees payable to Apollo pursuant to plans approved by the stockholders of Management Agreement and the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryShareholders Agreement.
Appears in 1 contract
Sources: Indenture (MTL Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) Neither the Company will notnor any of its Subsidiaries will, and will not cause directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for of its Affiliates (other than transactions between the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate Company and a Wholly Owned Subsidiary of the Company or any Affiliate of any among Wholly Owned Subsidiaries of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a Person that is not an Affiliate; provided, however, that for a transaction or series of related transactions involving value of $1,000,000 or more, such determination will be made in good faith by a holder, an Affiliate of such a holder or an Affiliate majority of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors of the Company and (y) either obtained the approval of by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $5,000,000 or more, the Board of Directors of the Company and (y) delivered to the Trustee has received an opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking firm that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction to the Company or such Subsidiary. The foregoing restrictions will not include apply to (i1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees obligations of the Company under the Financial Monitoring and Oversight Agreements (provided that each amendment of any of the foregoing agreements shall be subject to the limitations of this covenant) or any employment agreement, noncompetition or confidentiality with any officer of the Company, (3) reasonable and customary investment banking, financial advisory, commercial banking and similar fees and expenses paid to BT Securities Corporation and its Subsidiaries generally Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.03, (5) any issuance of securities, or other payments, awards or grants in their capacities as such) that has been cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii6) Capital Stock issuances loans or advances to directors, officers and employees in the ordinary course of business of the Company or any of its Subsidiaries pursuant consistent with past practices, (7) payments made in connection with the Osbo▇▇ ▇▇▇uisition, the Osbo▇▇ ▇▇▇-on Acquisitions, the Osbo▇▇ ▇▇. Myer▇ ▇▇▇position and the Pending Acquisitions, including fees to plans approved by Hick▇ ▇▇▇e as all such terms are defined in that certain Offering Memorandum dated February 14, 1997 relating to the stockholders Securities, and (8) the issuance of Capital Stock of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureDisqualified Capital Stock)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Parent and the Company Issuers will not, and will not cause permit any of their respective Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of their Affiliates (each an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company Parent, the Issuers or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $2.5 million shall be approved by a majority of the disinterested members of the Board of Directors of the Parent or a majority of the disinterested members, if any, of the Board of Directors of that Company or such Restricted Subsidiary (eachor, an "Affiliate Transaction"the entire Board of Directors, in the event there are no disinterested members of the Board of Directors of that Company or such Restricted Subsidiary), --------------------- except for as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the provisions set in this paragraph. If the Parent, the Issuers or any Restricted Subsidiary of the Issuers or the Parent enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate Fair Market Value of more than $10.0 million, the terms of which are at least as favorable as Parent, the terms which could be obtained by the Company Issuers or such Restricted Subsidiary, as the case may be, in shall, prior to the consummation thereof, obtain a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of related transactions to the Company or any of the Company's Subsidiaries.
(b) In additionParent, the Company will not, and will not cause Issuers or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in the first paragraph of this Section 4.17 shall not apply to:
(a1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Parent, the Issuers or any Restricted Subsidiary of the Issuers or the Parent as determined in good faith by the Parent’s Board of Directors or senior management;
(2) transactions exclusively between or among the Parent, the Issuers and any of their respective Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(3) the Refinancing Transactions, including the Senior Secured Facilities provided for in the Plan, or any agreement as in effect on the Issue Date (including any transaction expressly provided for therein) and (b) above , an Affiliate Transaction will not include any amendment thereto or any replacement agreement thereto so long as (i) any contractsuch amendment or replacement agreement is not more disadvantageous to the Holders, in any material respect, than the original agreement as in effect on the Issue Date, provided that any such amendment or understanding with, or for the benefit of, or plan for the benefit of employees replacement agreement shall be approved by a majority of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by disinterested members of the Board of Directors of the CompanyParent, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant such Restricted Subsidiary, as the case may be, such approval to plans approved be evidenced by a Board Resolution stating that such Board of Directors has determined that the stockholders terms of such amendment or replacement agreement comply with the Company, provisions set forth in clause (iiia) any of this Section 4.17 and Section 4.10 and the terms of this clause (3);
(4) Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment Payments permitted by this Indenture);
(5) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment related agreements, arrangements or plans entered into by the Parent, the Issuers or any of their respective Restricted Subsidiaries in the ordinary course of business;
(6) issuance of Qualified Capital Stock of the Parent and the granting of registration rights with respect to such Qualified Capital Stock;
(v7) any transaction between one on arm’s-length terms with a non-Affiliate that becomes an Affiliate as a result of such transaction; and
(8) arrangements with directors or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all officers of the payments toParent, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or any Restricted Subsidiary existing on the Issue Date and in effect on the Issue Date or as modified thereafter; provided that any such modification shall be approved by a majority of the disinterested members of the Board of Directors of the Parent, the Company or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that the terms of such modification comply with the provisions set forth in the first paragraph of this Section 4.17.
Appears in 1 contract
Sources: Indenture (Tcby of Australia, Inc.)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property in excess of $2.5 million shall be approved by the Board of Directors of the Company, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction the terms (or a series of which are at least as favorable as the terms which could be obtained by related Affiliate Transactions related to a common plan) that involves an aggregate payment or other property in excess of $5 million, the Company or such Restricted Subsidiary, as the case may be, in shall, prior to the consummation thereof, obtain a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair related transactions to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and shall provide such opinion to the Trustee together with an Officers' Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractreasonable fees and compensation paid to, agreement or understanding with, or for the benefit and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more Restricted any of its Subsidiaries or exclusively between or among Restricted Subsidiaries such Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (provided, -------- however, no such transaction shall involve iii) any other Affiliate agreement as in effect as of the ------- Company Issue Date (other than an Unrestricted Subsidiary as set forth in a list to be provided to the extent Initial Purchasers on the applicable amount constitutes a Issue Date) or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payment Payments permitted by this Indenture)) ; and (v) any transaction between one or more Restricted Subsidiaries transactions permitted by, and one or more Unrestricted Subsidiaries where all complying with, the provisions of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarycovenant described in Section 5.01.
Appears in 1 contract
Sources: Indenture (Standard Commercial Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) 58 Affiliate Transactions on terms that are no less favorable than those that could reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to:
(i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors;
(ii) 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 this Indenture;
(iii) any agreement as in effect or entered into as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments and Permitted Investments permitted by this Indenture;
(v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of paragraph (a) above;
(vi) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to or the funding of, employment arrangements, stock options and stock ownership plans or similar employee benefit plans approved by Board of Directors of the Company in good faith and loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith;
(vii) the payment of all fees and expenses related to the Transactions;
(viii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case on ordinary business terms and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party;
(iiix) fees payable to Apollo pursuant to the Management Agreement;
(x) any contribution to the capital of the Company by RPP Inc., or any sales of Capital Stock issuances of the Company to directors, officers RPP Inc.; and
(xi) any tax sharing agreement or arrangement and employees of payments pursuant thereto among the Company and its Subsidiaries and any other Person with which the Company or its Subsidiaries pursuant is required or permitted to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between file a consolidated tax return or among with which the Company and one or more any of its Restricted Subsidiaries is or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate could be part of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted consolidated group for tax purposes in amounts not otherwise prohibited by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (RPP Capital Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend permit to exist any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions involving aggregate payments or consideration in excess of $5.0 million (eachincluding, without limitation, the purchase, sale, lease, contribution or exchange of any property or the rendering of any service) with or for the benefit of any of its or any of its Restricted Subsidiary's Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"), --------------------- except other than Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a person that is not an Affiliate; provided, however, that for a transaction or series of related transactions involving value of $10.0 million or more, such determination will be made in good faith by a majority of members of the Board of Directors and by a majority of the disinterested members of the Board of Directors, if any. The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any Affiliate Transaction obligations of the terms Company under any employment agreement, noncompetition or confidentiality agreement with any officer of which are at least the Company, as favorable as in effect on the terms which could Issue Date (provided that each amendment of any of the foregoing agreements shall be obtained subject to the limitations of this covenant); (3) any Restricted Payment permitted to be made pursuant to Section 4.04 of this Indenture; (4) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors; (5) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries consistent with past practices; (6) payments made in connection with the Transactions, including, without limitation, fees payable to and expenses of Hick▇ ▇▇▇e and KKR; (7) payments by the Company or such any of its Restricted SubsidiarySubsidiaries to KKR or Hick▇ ▇▇▇e or their respective Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors in good faith; (8) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor delivers to the effect Trustee a letter from an Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Company or such Restricted Subsidiary, as the case may be, Subsidiary from a financial point of view or that is on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a person that is not an Affiliate; (9) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and (ii) with respect any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such Affiliate Transaction involving existing agreement or having under any similar agreement entered into after the Issue Date shall only be permitted by this clause (9) to the extent that the terms (taken as a value whole) of more than $50.0 millionany such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect; (10) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company shall have (x) obtained or its Restricted Subsidiaries, in the approval of a majority reasonable determination of the Board of Directors or the management thereof, or are on terms (taken as a whole) at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (11) any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such amendment, taken as a whole, is not disadvantageous to the Holders in any material respect) or any transaction contemplated thereby and (12) any purchases of Capital Stock (other than Disqualified Capital Stock) of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of viewby Affiliates thereof.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Regal Cinemas Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), having a value greater than $15.0 million other than (x) Affiliate Transactions permitted under Section 4.08(b) and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary.
(b) All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $50.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding The restrictions set forth in this Section 4.08 shall not apply to:
(a1) loans, advances and payments of reasonable fees and compensation paid (bwhether in cash or the issuance of Capital Stock of the Company) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company in their capacities the ordinary course of business or as such) that has been approved determined in good faith by the Company’s Board of Directors or senior management;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided that such transactions are not otherwise prohibited by the Indenture;
(3) any agreement as in effect as of the CompanyIssue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement, taken as a whole, is not materially more disadvantageous to the Holders than the original agreement as in effect on the Issue Date;
(ii4) any transaction on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction;
(5) any employment, consulting and severance arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(6) the issuance and sale of Qualified Capital Stock issuances to Stock;
(7) Permitted Investments and Restricted Payments permitted by the Indenture; and
(8) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the Company and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or its Subsidiaries pursuant to plans approved by the stockholders operation of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more the Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiarySubsidiaries.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary.
(b) All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $10.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a value that involves an aggregate Fair Market Value of more than $10 35.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding (aThe following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Sections 4.12(a) and (b) above , an Affiliate Transaction will not include hereof:
(i1) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries (provided, -------- however, no Subsidiaries; provided that such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted transactions are not otherwise prohibited by this Indenture)) and ;
(v3) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all agreement as in effect as of the payments to, Issue Date or other benefits conferred upon, any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such Unrestricted Subsidiaries are substantially contemporaneously dividended, amendment or otherwise distributed or transferred without charge, replacement agreement is not more disadvantageous to the Company or Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) transactions effected as part of a Permitted Securitization Transaction; and
(5) Restricted SubsidiaryPayments made pursuant to Section 4.07 hereof.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under the third paragraph below or (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments with a fair market value in excess of $7.5 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 20.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) , from an Independent Financial Advisor and (b) above , an Affiliate Transaction will file the same with the Trustee. The restrictions set forth in this Section 4.11 shall not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments apply to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.:
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make directly or indirectly, conduct any loanbusiness or enter into any transaction or series of transactions (including the purchase, advancesale, guarantee or capital contribution totransfer, or for the benefit of, or sellassignment, lease, transfer conveyance or otherwise dispose exchange of any property Property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction unless:
(a) the terms of which are at least as favorable as the terms which could be obtained by such Affiliate Transaction are:
(i) set forth in writing,
(ii) fair to the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.and
(biii) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person that is not an Affiliate of the Company,
(b) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, 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 clauses (a)(ii) and (iii) of this paragraph as evidenced by a Board Resolution promptly delivered to the Trustee, and
(c) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair, from a financial point of view view, to the Company and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionits Subsidiaries. 44 Notwithstanding the foregoing limitation, the Company shall have or any of its Subsidiaries may enter into or suffer to exist the following:
(xa) obtained any transaction or series of transactions between the approval Company and one or more of its Subsidiaries or between two or more of its Subsidiaries in the ordinary course of business, provided that no more than 5% of the total voting power of the Voting Stock (on a majority fully diluted basis) of any such Subsidiary is owned by an Affiliate of the Company (other than a Subsidiary);
(b) any Restricted Payment permitted to be made pursuant to Section 4.10 or any Permitted Investment;
(c) the payment of compensation (including amounts paid pursuant to employee benefit plans), incentive plans, employment agreements and option grants for the personal services of officers, directors and employees of the Company or any of its Subsidiaries, so long as the Board of Directors in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation to be fair consideration therefor;
(d) loans and advances to employees made in the ordinary course of business and consistent with the Company and (y) delivered to the Trustee an opinion past practices of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.provided that such loans and advances do not exceed $250,000 in the aggregate at any one time outstanding;
(ce) Notwithstanding transactions otherwise in compliance with clause (a) of this Section 4.14 and expressly contemplated by Section 4.23;
(b) above , an Affiliate Transaction will not include (if) any contract, agreement payments or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries other transactions pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction tax-sharing agreement between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes; and
(g) the ------- Company (other than an Unrestricted Subsidiary to following agreements in effect on the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) Issue Date and (v) any transaction between one modifications, extensions or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries renewals thereto that are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, no less favorable to the Company or a Restricted Subsidiaryany of its Subsidiaries thereof than such agreements as in effect on the Issue Date, namely:
(1) that certain Agreement of Trademark Use dated August 18, 2004, between Harbin Tech Full Electric Co. Ltd. and Harbin Tech Full Industry Co. Ltd. for two registered trademarks owned by the latter entity;
(2) that certain Lease Agreement dated March 20, 2005, between Harbin Tech Full Electric Co. Ltd. and Harbin Tech Full Industry Co., Ltd. for leasing premises on the former entity's main campus in Harbin, PRC; and
(3) that certain Patent Transfer Agreement dated August 19, 2004 between Harbin Tech Full Electric Co. Ltd. and Harbin Tech Full Industry Co. Ltd. for three patents owned by the latter entity.
Appears in 1 contract
Sources: Indenture (Harbin Electric, Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) Neither the Company will notnor any of its Subsidiaries will, and will not cause directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for of its Affiliates (other than transactions between the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate Company and a Wholly Owned Subsidiary of the Company or any Affiliate of any among Wholly Owned Subsidiaries of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a person that is not such an Affili- ate; provided, however, that for a holder, an Affiliate transaction or series of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction related transactions involving or having a value of more than $10 million5.0 million or more, the Company shall have (x) obtained the approval of such determination will be made in good faith by a majority of members of the Board of Directors of the Company and (y) either obtained the approval of by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15.0 million or more, the Board of Directors of the Company and (y) delivered to the Trustee has received an opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking firm that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction to the Company or such Subsidiary. The foregoing restrictions will not include apply to (i1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees obligations of the Company under the Financial Monitoring and Oversight Agreements, or its Subsidiaries generally any employment agreement, noncompetition or confidentiality agreement with any officer of the Company (provided that each amendment of any of the foregoing agreements shall be subject to the limitations of this covenant), (3) reasonable and customary investment banking, financial advisory, commercial banking and similar fees and expenses paid to the Initial Purchasers and their Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.10, (5) any issuance of securities, or other payments, awards or grants in their capacities as such) that has been cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii6) Capital Stock issuances loans or advances to directors, officers and employees in the ordinary course of business of the Company or any of its Subsidiaries pursuant to plans approved by consistent with past practices and (7) the stockholders issuance of Capital Stock of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureDisqualified Stock)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (Agencies, after which time this Section 3.05 will the following covenant no longer will be in effect),binding on the Company:
(a) neither the Company will notnor any of its Restricted Subsidiaries may, and will not cause directly or permit any Restricted Subsidiary toindirectly, make any loan, advance, guarantee guaranty or capital contribution to, to or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, of any Affiliate which transaction involves or has a value in excess of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company $250,000 (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction (i) Restricted Payments otherwise permitted hereunder, and (ii) transactions, the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's SubsidiariesAffiliates.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (ia) with respect to any such Affiliate Transaction involving or having a series of related Affiliate Transactions with an aggregate value in excess of more than $10 million5,000,000, the Company shall have (x) obtained the approval of such transaction must first be approved, by a majority of the Board Disinterested Directors and (b) with respect to any Affiliate Transaction or related series of Directors Affiliate Transactions with an aggregate value in excess of $25,000,000, the Company and (y) either obtained must first deliver to the approval of Trustee a majority of the Company's disinterested directors or obtained favorable written opinion from an opinion of a qualified independent financial advisor of national reputation as to the effect that fairness from a financial point of view of such Affiliate Transaction is fair transaction to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will Transactions shall not include (i) transactions exclusively between or among the Company and one or more Restricted Subsidiaries or between or among one or more Restricted Subsidiaries, (ii) any contract, agreement or understanding with, or for the benefit of, or plan planned for the benefit of of, employees of the Company or its any Restricted Subsidiaries generally (in their capacities capacity as such) that has been approved by the Board of Directors Directors, (iii) issuances of Qualified Capital Stock of the Company, (ii) Capital Stock issuances Company to directorsmembers of the Board of Directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders or the Board of Directors of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04Company or the respective Subsidiary, (iv) any transaction between or among home sales and readily marketable mortgage loans to employees, officers and directors of the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (providedin the ordinary course of business, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries payment of regular fees and one or more Unrestricted Subsidiaries where all reimbursement of expenses to directors of the payments to, Company who are not employees of the Company and reimbursement of expenses and payment of wages and other compensation to officers and employees of the Company or other benefits conferred upon, such Unrestricted any of its Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, (vi) contractual arrangements in effect on the Issue Date and renewals and extensions thereof not involving modifications adverse to the Company or a any Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (MDC Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that could reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to:
(i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any contractRestricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors;
(ii) 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 this Indenture;
(iii) any agreement as in effect or understanding withentered into as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments and Permitted Investments permitted by this Indenture;
(v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of paragraph (a) above;
(vi) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or for the benefit funding of, employment arrangements, stock options and stock ownership plans or plan for similar employee benefit plans approved by Board of Directors of the benefit of Company in good faith and loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith;
(vii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case on ordinary business terms and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party;
(iiviii) fees payable to Apollo pursuant to the Management Agreement as in effect on the Issue Date or pursuant to any amendment, restatement or replacement thereof to the extent that such amendment, restatement or replacement does not provide for any fees or other payments in excess of those set forth in the Management Agreement as in effect on the Issue Date;
(ix) any contribution to the capital of the Company by any Permitted Holder or any sales of Capital Stock issuances of the Company to directors, officers any Permitted Holder; and
(x) any tax-sharing agreement or arrangement and employees of payments pursuant thereto among the Company and its Subsidiaries and any other Person with which the Company or its Subsidiaries pursuant is required or permitted to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between file a consolidated tax return or among with which the Company and one or more any of its Restricted Subsidiaries is or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate could be part of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted consolidated group for tax purposes in amounts not otherwise prohibited by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Salt Holdings Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, enter into any loantransaction or series of related transactions (including, advancewithout limitation, guarantee the purchase, sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under the third paragraph below and (y) Affiliate Transactions on terms that are no less favorable than those that would reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view., from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this Section 4.11 shall not apply to:
(c1) Notwithstanding (a) reasonable fees, compensation and (b) above reimbursement of fees and expenses paid to, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company’s Board of Directors or senior management;
(2) transactions between or among the Company and any of its Restricted Subsidiaries generally or between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in their capacities effect as suchof the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect when taken as a whole than the original agreement as in effect on the Issue Date;
(4) Restricted Payments and Investments permitted by this Indenture;
(5) any payments or other transactions pursuant to any tax-sharing agreement between any direct or indirect parent company of the Company and the Company with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(6) sales of Qualified Capital Stock to Affiliates of the Company not otherwise prohibited by this Indenture and the granting of registration and other customary rights in connection therewith;
(7) loans or advances to employees or consultants that has been are approved in good faith by the Board of Directors of the Company;
(8) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and services, in each case, in the ordinary course of business and otherwise not prohibited by this Indenture; and
(ii9) Capital Stock issuances to directorsthe existence of, officers and employees of the performance by the Company or any of its Restricted Subsidiaries pursuant of its obligations under the terms of any, limited liability company, limited partnership or other organizational document or stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to plans approved which it is a party at the date of this Indenture and similar agreements that it may enter into thereafter; provided, however, that the existence of, or the performance by the stockholders 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 date of the Company, Indenture shall only be permitted by this clause (iii9) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or not more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, disadvantageous to the Company or Holders in any material respect when taken as a Restricted Subsidiarywhole.
Appears in 1 contract
Sources: Indenture (Nb Finance Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (Agencies, after which time this Section 3.05 will the following covenant no longer will be in effect),binding on the Company:
(a) neither the Company will notnor any of its Restricted Subsidiaries may, and will not cause directly or permit any Restricted Subsidiary toindirectly, make any loan, advance, guarantee guaranty or capital contribution to, to or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, of any Affiliate which transaction involves or has a value in excess of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company $250,000 (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction (i) Restricted Payments otherwise permitted hereunder, and (ii) transactions, the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's SubsidiariesAffiliates.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a series of related Affiliate Transactions with an aggregate value in excess of more than $10 million5,000,000, the Company shall have (x) obtained the approval of such transaction must first be approved, by a majority of the Board of Disinterested Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a related series of Affiliate Transactions with an aggregate value in excess of more than $50.0 million25,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered must first deliver to the Trustee a favorable written opinion from an opinion of a qualified independent financial advisor of national reputation as to the effect that fairness from a financial point of view of such Affiliate Transaction is fair transaction to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will Transactions shall not include (i) transactions exclusively between or among the Company and one or more Restricted Subsidiaries or between or among one or more Restricted Subsidiaries, (ii) any contract, agreement or understanding with, or for the benefit of, or plan planned for the benefit of of, employees of the Company or its any Restricted Subsidiaries generally (in their capacities capacity as such) that has been approved by the Board of Directors Directors, (iii) issuances of Qualified Capital Stock of the Company, (ii) Capital Stock issuances Company to directorsmembers of the Board of Directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders or the Board of Directors of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04Company or the respective Subsidiary, (iv) any transaction between or among home sales and readily marketable mortgage loans to employees, officers and directors of the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (providedin the ordinary course of business, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries payment of regular fees and one or more Unrestricted Subsidiaries where all reimbursement of expenses to directors of the payments to, Company who are not employees of the Company and reimbursement of expenses and payment of wages and other compensation to officers and employees of the Company or other benefits conferred upon, such Unrestricted any of its Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, (vi) contractual arrangements in effect on the Issue Date and renewals and extensions thereof not involving modifications adverse to the Company or a any Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (MDC Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph (c) of this Section and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary.
(b) All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 20.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding The restrictions set forth in paragraphs (a) and (b) above of this Section 4.11 shall not apply to:
(1) reasonable fees and compensation (including the payment of reasonable and customary benefits (including retirement, an Affiliate Transaction will not include (ihealth, option, deferred compensation and other benefits plans) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company) paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or its Subsidiaries pursuant to plans approved any Restricted Subsidiary of the Company as determined in good faith by the stockholders Company’s Board of the Company, Directors or senior management;
(iii2) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided, -------- however, no such transaction shall involve 3) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(4) Restricted Payment Payments or Permitted Investments permitted by this Indenture)) and ;
(v5) any transaction between one sale, conveyance or more Restricted Subsidiaries other transfer of Receivables and one or more Unrestricted Subsidiaries where all other related assets customarily transferred in a Qualified Securitization Transaction; and
(6) the issuance of Qualified Capital Stock of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or Company otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarypermitted hereunder.
Appears in 1 contract
Sources: Indenture (Mobile Mini Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company ▇▇▇▇▇▇ Publishing will not, and will not cause permit any of its Restricted Subsidiaries to, (i) directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any other than (x) Affiliate Transaction Transactions specifically permitted under subsections (1) through (6) of clause (d) of this Section 4.11 and (y) Affiliate Transactions in the ordinary course of business on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made at such time on an arm's arm’s-length basis with Persons who are from a Person that is not such a holder, an Affiliate of ▇▇▇▇▇▇ Publishing or such a holder Restricted Subsidiary or (ii) materially amend, modify or waive any provisions of any agreement, whether written or oral, respecting an Affiliate of Transaction in effect on the Company or any of date hereof; provided, that the Company's SubsidiariesServices Agreement may be amended as provided for in Section 4.24.
(b) In additionSo long as any Notes are outstanding, and notwithstanding anything to the Company contrary herein, ▇▇▇▇▇▇ Publishing will not, and will not cause permit any of its Restricted Subsidiaries to, make or permit to exist any Restricted Subsidiary to, enter into intercompany loans from any Obligor to any Affiliate thereof that is not an Affiliate Transaction unless Obligor other than (i) the Tranche B Loan and (ii) short term intercompany payables between ▇▇▇▇▇▇ Publishing and ▇▇▇▇▇▇ Communications incurred in the ordinary course of business on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary consistent with respect to any such past practices which are settled monthly.
(c) All Affiliate Transaction Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or having other property with a fair market value in excess of more than $10 million, the Company 1.0 million shall have either (xi) obtained the approval of be approved by a majority of the Board of Independent Directors of ▇▇▇▇▇▇ Publishing, but in no event fewer than two Independent Directors of ▇▇▇▇▇▇ Publishing, such approval to be evidenced by a Board Resolution stating that such Independent Directors have determined that such transaction complies with the Company and foregoing provisions or, (yii) either obtained in the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor event there are fewer than two such Independent Directors, ▇▇▇▇▇▇ Publishing shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. If ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of ▇▇▇▇▇▇ Publishing enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5.0 million, ▇▇▇▇▇▇ Publishing shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to ▇▇▇▇▇▇ Publishing or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cd) Notwithstanding Except as expressly permitted below and subject at all times to the restrictions set forth in clause (b) of this Section, the restrictions set forth in clause (a) of this Section shall not apply to:
(1) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit consultants of employees ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of the Company or its Subsidiaries generally (▇▇▇▇▇▇ Publishing as determined in their capacities as such) that has been approved good faith by the ▇▇▇▇▇▇ Publishing’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction Affiliate Transactions between or among the Company and one or more ▇▇▇▇▇▇ Publishing, any of its Restricted Subsidiaries that are Guarantors or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided3) The Services Agreement or, -------- however, no an amendment or replacement agreement thereto so long as any such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary amendment or replacement thereto is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a Services Agreement, as amended in accordance with Section 4.24 as in effect on the Issue Date;
(4) Restricted Payment Payments permitted by this Indenture);
(5) transactions in the ordinary course of business and (v) conducted on an arm’s length basis, exclusively between ▇▇▇▇▇▇ Publishing or any transaction between one or more of its Restricted Subsidiaries and one a joint venture to which ▇▇▇▇▇▇ Publishing or more Unrestricted any of its Restricted Subsidiaries where all is a party; provided, however, that the other party or parties to such joint venture are not Affiliates of ▇▇▇▇▇▇ Publishing, any of its Restricted Subsidiaries or any Permitted Holder; and
(6) the payments toLoan Documents (as defined in the Senior Debt Credit Agreement) as in effect on the Issue Date, or other benefits conferred uponas such documents may be amended, such Unrestricted Subsidiaries are substantially contemporaneously dividendedrestated, supplemented, or otherwise distributed or transferred without charge, modified from time to time in accordance with the Company or a Restricted SubsidiaryIntercreditor Agreement.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not permit, cause or permit suffer any Restricted Subsidiary to, make conduct any loan, advance, guarantee business or capital contribution to, enter into any transaction or series of related transactions with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries its Affiliates or any beneficial holder of 10% or more of the Common any class of Equity Interests of the Company (including or any Affiliates officer or director of such holders), in a single transaction the Company or series of related transactions any Restricted Subsidiary (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the on terms of which that are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, fair and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair reasonable to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such . Each Affiliate Transaction involving aggregate payments or other property having a value Fair Market Value in excess of more than $50.0 million, the Company 2.5 million shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been be approved by the Board of Directors of the Company, such approval to be evidenced by a resolution of such Board of Directors stating that such Board of Directors (including a majority of the disinterested directors) has determined that such transaction complies with the foregoing provisions. In addition to the foregoing, with respect to any Affiliate Transaction involving aggregate consideration in excess of $5.0 million or more, the Company must obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, are fair from a financial point of view. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or among the Company and/or any of the Restricted Subsidiaries; provided, however, in any such case, no officer, director or beneficial holder of 10% or more of any class of Equity Interests of the Company shall beneficially own any Voting Stock of any such Restricted Subsidiary (other than by reason of 38 its ownership of Equity Interests of the Company), (ii) Capital Stock issuances to directors, officers and employees of the Company transactions between or its Subsidiaries pursuant to plans approved by the stockholders of the Companyamong Restricted Subsidiaries, (iii) any Restricted Payment otherwise permitted under Section 3.044.06, (iv) any transaction between directors' fees, indemnification and similar arrangements, officers' indemnification, employee stock option or among employee benefit plans, employee salaries and bonuses, employment agreements or legal fees paid or created in the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate ordinary course of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) business and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of payments pursuant to arrangements as in effect on the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryIssue Date.
Appears in 1 contract
Sources: Indenture (Trans Resources Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 5.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries (providedon the one hand and any Permitted Joint Venture on the other hand, -------- however, so long as no such transaction shall involve any other portion of the remaining interest in the Permitted Joint Venture is owned by a Person who is an Affiliate of the ------- Company (other than an Unrestricted another Restricted Subsidiary of the Company); (iv) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date; (v) advances or loans to employees, officers and directors of the Company and its Restricted Payment Subsidiaries permitted by this Indenture)clauses (iv) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a definition of "Permitted Investments"; and (vi) Restricted SubsidiaryPayments permitted by this Indenture.
Appears in 1 contract
Sources: Indenture (Sitel Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph (c) below and (y) Affiliate Transactions on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary.
(b) All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction Transactions that are part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $5.0 million shall be approved by the terms Board of which are at least as favorable as the terms which could be obtained by Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions as part of a common plan) with respect to any such Affiliate Transaction involving or having a value that involves an aggregate Fair Market Value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor.
(c) Notwithstanding The restrictions set forth in paragraphs (a) and (b) above of this Section 4.11 shall not apply to:
(1) reasonable and customary directors’ fees, an Affiliate Transaction will not include (i) indemnification and similar arrangements, employees’ salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any contractofficer, agreement director or understanding with, or for the benefit of, or plan for the benefit of employees employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business and payments under any indemnification arrangements permitted by applicable law, as determined in good faith by the Company’s Board of Directors;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries generally or exclusively between or among such Restricted Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the Issue Date or any amendment, supplement, modification, restatement, renewal, replacement, refinancing, increase, refunding, extension, substitution or restructuring thereof or thereto or any transaction contemplated by any of the foregoing, so long as any such amendment, supplement, modification, restatement, renewal, replacement, refinancing, increase, refunding, extension, substitution or restructuring is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) payments to permit payments for Holdings’ employees and officers and directors similar to those provided in clause (1) above and payments in an amount not to exceed, in the aggregate, in any calendar year the sum of (x) $1.0 million and (y) any amounts payable by the Company to the Designated Active Sponsors (as defined in the Advisory Services Agreement) in connection with any Future Corporate Transaction or any Future Securities Transaction (in their capacities each case as suchdefined in the Advisory Services Agreement) that has been to the Equity Investors for advisory services and transaction fees pursuant to the Advisory Services Agreement;
(5) loans or advances to directors, officers or employees in the ordinary course of business in an amount not to exceed $1.0 million per fiscal year;
(6) Restricted Payments, Permitted Investments (other than Permitted Investments under clause 5 of the definition thereof) and intercompany Indebtedness permitted by this Indenture;
(7) any transaction with an Affiliate where the only consideration paid by the Company or any Restricted Subsidiary is Qualified Capital Stock of the Company or Holdings;
(8) sales of Capital Stock (other than Disqualified Capital Stock) of the Company or Holdings to Affiliates of the Company; and
(9) payments or other transactions pursuant to any tax sharing agreement approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of Company or the relevant Restricted Subsidiary between the Company (or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (ivSubsidiary) and any transaction between or among other Person with which the Company and one (or more Restricted Subsidiaries Subsidiary) files a consolidated tax return or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of with which the ------- Company (other than an Unrestricted Subsidiary or Restricted Subsidiary) is part of a consolidated group for tax purposes, but only to the extent the applicable amount constitutes a Restricted Payment permitted that amounts payable from time to time by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company under any such agreement do not exceed the corresponding tax payments that the Company would have been required to make to any relevant taxing authority had the Company not joined in such consolidated or a Restricted Subsidiarycombined return, but instead had filed returns including only the Company.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under the third paragraph below or (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments with a fair market value in excess of $7.5 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 20.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view., from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this Section 4.11 shall not apply to:
(c1) Notwithstanding (a) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided3) any agreement, -------- howeveror any arrangement the terms of which have been disclosed prior to the Issue Date in the Offering Memorandum, no such transaction shall involve any other Affiliate as in effect as of the ------- Company Issue Date or any amendment or replacement agreement thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment or replacement agreement thereto) so long as any such amendment or replacement agreement taken as a whole is not materially more disadvantageous to the extent Holders than the applicable amount constitutes a Restricted Payment original agreement as in effect on the Issue Date;
(4) payments and Investments permitted by this Indenture);
(5) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise (other than issuances, payments, awards or grants to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) pursuant to, or the funding of, employment arrangements, employee stock options and employee stock ownership plans approved by the applicable Board of Directors;
(6) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries consistent with past practice;
(7) transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture;
(v) 8) any transaction between one or more Restricted Subsidiaries on arm’s-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction;
(9) purchases and one or more Unrestricted Subsidiaries where sales of product and raw materials, insurance arrangements and payments, all of the payments toforegoing in the ordinary course of business consistent with past practice or as may be necessary to accommodate legal, regulatory or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, changes in the business of the Company and its Restricted Subsidiaries;
(10) employment agreements and similar arrangements with employees and independent contractors other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(11) the issuance and sale of Qualified Capital Stock; and
(12) payments made pursuant to the following conditions: if the Company is to file consolidated federal income tax returns with Holdings or combined or unitary state income tax returns with Holdings, the Company may enter into a Restricted Subsidiarytax sharing agreement with Holdings and may pay to Holdings amounts when due and payable pursuant to such tax sharing agreement in respect of amounts of tax due with respect to such consolidated, combined or unitary returns and any additional taxes due from time to time as a result of any audit thereof, as the case may be, in each case in an amount not to exceed the amount of tax that the Company would have been obligated to pay to the appropriate taxing authority if the Company and its Subsidiaries had filed a hypothetical separate consolidated, combined or unitary return for the then current year and all prior years ending after the Issue Date.
Appears in 1 contract
Sources: Indenture (Dole Food Co Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend permit to exist any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions involving aggregate payments or consideration in excess of $5.0 million (eachincluding, without limitation, the purchase, sale, lease, contribution or exchange of any property or the rendering of any service) with or for the benefit of any of its or any of its Restricted Subsidiary's Affiliates (other than transactions between the Company and a Restricted Subsidiary of the Company or among Restricted Subsidiaries of the Company) (an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a person that is not such an Affiliate; provided, however, that for a holder, an Affiliate transaction or series of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction related transactions involving or having a value of more than $10 million10.0 million or more, the Company shall have (x) obtained the approval of such determination will be made in good faith by a majority of members of the Board of Directors of the Company and (y) either obtained the approval of by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors Directors, if any. The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any obligations of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company under any employment agreement, noncompetition or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) confidentiality agreement with any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors officer of the Company, as in effect on the Issue Date (ii) Capital Stock issuances to directors, officers and employees provided that each amendment of any of the Company or its Subsidiaries pursuant foregoing agreements shall be subject to plans approved by the stockholders limitations of the Company, this covenant); (iii3) any Restricted Payment otherwise permitted under to be made pursuant to Section 3.04, 4.04 of this Indenture; (iv4) any transaction between issuance of securities, or among the Company and one other payments, awards or more Restricted Subsidiaries grants in cash, securities or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments otherwise pursuant to, or other benefits conferred uponthe funding of, such Unrestricted Subsidiaries are substantially contemporaneously dividendedemployment arrangements, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.stock
Appears in 1 contract
Sources: Indenture (Regal Cinemas Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company will NATG shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any ) other than (i) Affiliate Transaction Transactions permitted under the following paragraph and (ii) Affiliate Transactions on terms of which that are at least as no less favorable as the terms which could be obtained by the Company to NATG or such Restricted Subsidiary, as the case may be, than those that might reasonably have been obtained in a comparable transaction made at such time on an arm's arm's-length basis with Persons who are from a Person that is not such a holder, an Affiliate of NATG or such a holder Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval part of a majority common plan) involving aggregate payments or other property with a fair market value in excess of $2.5 million shall be approved by the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company NATG or such Restricted Subsidiary, as the case may be, from such approval to be evidenced by a financial point resolution stating that such Board of view and (ii) Directors has determined that such transaction complies with respect to the foregoing provisions. If NATG or any such Restricted Subsidiary enters into an Affiliate Transaction involving (or having a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $50.0 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company NATG or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain an opinion that the Affiliate Transaction complies with the requirements of this covenant from a financial point of viewan Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in paragraph (a) and (b) above , an Affiliate Transaction will shall not include apply to: (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, agents or consultants of Parent, NATG or any contractRestricted Subsidiaries of NATG as determined in good faith by Parent's Board of Directors or senior officers; (ii) transactions exclusively between or among any of NATG or any Restricted Subsidiaries of NATG; provided, that such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or understanding withany amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to NATG or its Subsidiaries, as the case may be, in any material respect, than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted under Section 4.3; (v) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or for the benefit funding of, employment arrangements, stock options and stock ownership plans of Parent entered into in the ordinary course of business and approved by Parent's Board of Directors; (vi) the payment of reasonable and customary management, consulting and advisory fees and related out of pocket expenses of WSP and its Affiliates, including, without limitation, in connection with acquisitions, divestitures, or plan for the benefit financings by Parent or any of employees of the Company or its Subsidiaries generally (Restricted Subsidiaries, in their capacities each case as such) that has been may be approved by the Board of Directors of Parent in good faith; (vii) loans and advances to employees and officers of Parent and its Restricted Subsidiaries in the Companyordinary course of business for bona fide business purposes not in excess of $1.0 million at any time outstanding; (viii) indemnification agreements provided for the benefit of Parent or any Restricted Subsidiary of Parent from officers, (ii) Capital Stock issuances to directors, officers employees agents or consultants of Parent or any Restricted Subsidiary of Parent; (ix) transactions effected as part of a Qualified Receivables Transaction; and employees (x) the payment to Jack ▇▇▇▇▇ ▇▇▇ consulting services pursuant to his consulting agreement with Parent and its Subsidiaries as in effect as of the Company Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to Parent or its Subsidiaries pursuant to plans approved by Subsidiaries, as the stockholders of case may be, in any material respect than the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among original agreement as in effect on the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryIssue Date.
Appears in 1 contract
Sources: Indenture (Natg Holdings LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, enter into any loantransaction or series of related transactions (including, advancewithout limitation, guarantee the purchase, sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), unless (i) such Affiliate Transaction is on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary and (ii) (A) if such Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transaction (including any Affiliates of such holders), in a single transaction or series of related transactions (eachAffiliate Transactions) involves aggregate consideration in excess of $15.0 million, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which such Affiliate Transaction (or series of related Affiliate Transactions) have been approved by the Board of Directors including a majority of the Disinterested Directors of the Company or such Restricted Subsidiary pursuant to a Board Resolution stating that such Affiliate Transaction (or series of related Affiliate Transactions) complies with clause (i) above and (B) if such Affiliate Transaction (or series of related Affiliate Transactions) involves aggregate consideration in excess of $30.0 million (or if there are at least as favorable as the terms which could be obtained by no Disinterested Directors with respect to such Affiliate Transaction (or series of related Affiliate Transactions)), the Company or such Restricted Subsidiary, as the case may be, in prior to the consummation thereof, obtains a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair related transactions to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and files the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) of this Section 4.13 shall not apply to:
(1) reasonable fees and (b) above compensation paid to and indemnity provided on behalf of officers, an Affiliate Transaction will not include (i) any contractdirectors, agreement employees or understanding with, or for the benefit of, or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(provided3) sales or other transfers or dispositions of accounts receivable and other Related Assets customarily transferred in an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, -------- however, no such transaction shall involve and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction;
(4) any other Affiliate agreement as in effect as of the ------- Company Issue Date or any amendment thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not materially more disadvantageous, taken as a whole to the extent Holders than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(5) Restricted Payment Payments or Permitted Investments permitted by this Indenture)) and ;
(v6) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to with a Person which would constitute an Affiliate Transaction solely because the Company or a Restricted SubsidiarySubsidiary owns an equity interest in or otherwise controls such Person; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest in such Person; and
(7) (a) any transaction with an Affiliate where the only consideration paid by the Company or any Restricted Subsidiary is Qualified Capital Stock of the Company or (b) the issuance or sale of any Qualified Capital Stock of the Company.
Appears in 1 contract
Sources: Indenture (Exide Technologies)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $3.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, consultants or plan for the benefit of employees investment bankers of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries generally or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) -------- any agreement as in their capacities effect as suchof the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that has been such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of this Section 4.12; (vi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the Investors' Rights Agreement, the Securities Purchase Agreement, any stockholders' agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or -------- ------- the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (vi) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in any material respect; (vii) the issuance of securities or other payments, awards or grants, in cash, securities or otherwise, pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii) Capital Stock issuances Company in good faith and loans to directors, officers and employees of the Company and its Subsidiaries which are approved by senior management of the Company in good faith; (viii) the payment of all fees and expenses related to the Transactions; (ix) transactions with customers, clients, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Subsidiaries pursuant to plans approved by Restricted Subsidiaries, in the stockholders reasonable determination of senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and (iiix) any Restricted Payment otherwise permitted under Section 3.04, transactions reasonably related to (ivx) any transaction between the exercise of rights and remedies with respect to the Convertible Subordinated Notes or among (y) the Company and one conversion or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate exchange of the ------- Company Convertible Subordinated Notes (other than an Unrestricted Subsidiary each to the extent the applicable amount constitutes a Restricted Payment permitted by not otherwise prohibited in this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(ai) the Company Lessee will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (A) Affiliate Transaction the Transactions permitted under paragraph (ii) below and (B) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of Lessee or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as the terms which could similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5,000,000 shall be obtained approved by the Company unaffiliated members of the Board of Directors of Lessee or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable transaction made on an arm's length basis with Persons who are not Board Resolution stating that such a holder, an Affiliate of such a holder or an Affiliate unaffiliated members of the Company Board of Directors has determined that such transaction complies with the foregoing provisions. If Lessee or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any -43- 49 Restricted Subsidiary to, enter of Lessee enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 million10,000,000, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Lessee or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to Lessee or the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from a nationally recognized firm qualified to do the business for which it is engaged and file the same with Indenture Trustee.
(cii) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include The restrictions set forth in clause (i) any contract, agreement or understanding with, or for the benefit above shall not apply to (A) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for consultants of Lessee or any Restricted Subsidiary of Lessee as determined in good faith by Lessee's Board of Directors or senior management; (B) transactions exclusively between or among Lessee and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Agreement; (C) any agreement as in effect as of the benefit of Issue Date (including, but not limited to, the Weat▇▇▇▇▇▇▇ ▇▇▇nsition Services Agreement) or any amendment thereto or any transaction contemplated thereby (including, but not limited to, pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Tranche A Noteholders in any material respect than the original agreement as in effect on the Issue Date; (D) Restricted Payments permitted by Section 9.2(b); (E) the Tax Sharing Agreement; (F) employment agreements with officers and employees of Lessee and its Restricted Subsidiaries, in the Company ordinary course of business; (G) loans and advances to employees not to exceed $5,000,000 outstanding at any one time, in the ordinary course of business; (H) arrangements with directors of Lessee existing on the Issue Date as disclosed in the Offering Memorandum; (I) the Acquisition of Gas Services International Ltd. and related entities including International Pumps & Compressions Pty. Ltd. for consideration of approximately $21 million, if consummated within six (6) months of the Issue Date, and documents related thereto; and (J) the provision of compression or its Subsidiaries generally (related services to Weat▇▇▇▇▇▇▇ ▇▇ any other Affiliate in their capacities as such) the ordinary course of business on market terms; provided, however, that has been if aggregate payments or property involved in any such transaction or series of related transactions exceeds $5,000,000, such transaction or transactions shall be approved by the unaffiliated members of the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryLessee.
Appears in 1 contract
Sources: Participation Agreement (BRL Universal Equipment Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in paragraph (a) of this Section 4.11 shall not apply to:
(1) fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management;
(b2) above , an Affiliate Transaction will not include transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(i3) any contractagreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) Restricted Payments permitted by this Indenture;
(5) loans or advances in the ordinary course of business to officers, agreement directors or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or any Restricted Subsidiary including advances for travel and moving expenses;
(6) any employment, severance or termination agreement entered into by the Company or any of its Restricted Subsidiaries generally in the ordinary course of business;
(7) transactions with customers, suppliers or purchasers or sellers of goods or services which are fair to the Company and its Restricted Subsidiaries in their capacities as such) that has been approved by the reasonable determination of the Board of Directors of the Company, ;
(ii) 8) issuance of Qualified Capital Stock issuances to directors, officers and employees of the Company and the granting of registration rights with respect to that Qualified Capital Stock; and
(9) payments or its Subsidiaries other transactions pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction tax sharing arrangement between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate Person with which the Company files a consolidated tax return or with which the Company is part of the ------- Company (other than an Unrestricted Subsidiary a consolidated group for tax purposes but only to the extent the applicable amount constitutes a Restricted Payment permitted that amounts payable from time to time by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company under any such agreement do not exceed the corresponding tax payments that the Company would have been required to make to any relevant taxing authority had the Company not joined in such consolidated or a Restricted Subsidiarycombined return, but instead had filed returns including only the Company.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any Restricted Subsidiary of its Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding without limitation, an "Affiliate Transaction")the sale, --------------------- except for purchase, exchange or lease of assets, property or services) with any Affiliate Transaction of the Company (except that the Company and any of its Subsidiaries may enter into any transaction or series of related transactions with any Subsidiary of the Company without limitation under this covenant) unless: (i) such transactions or series of related transactions is on terms of which that are at least as no less favorable as the terms which could be obtained by to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction made on in an arm's length basis dealing with Persons who are a Person that is not such a holder, an Affiliate or, in the absence of such a holder comparable transaction, on terms that the relevant Board of Directors determines in good faith would be offered to a Person that is not an Affiliate; (ii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $500,000, the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (i) above and has been approved by a majority of the Disinterested Directors of the relevant Board of Directors of the Company or such Subsidiary, as the case may be; and (iii) with respect to any transaction or series of related transaction involving aggregate payments in excess of $2,500,000, or in the event that no members of the Board of Directors are Disinterested Directors with respect to any transaction or series of transactions included in clause (ii), (x) in the case of a transaction involving real property, the aggregate rental or sale price of such real property shall be the fair market sale or rental value of such real property as determined in a written opinion by a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required and (y) in all other cases, the Company delivers to the Trustee a written opinion of a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction or series of transactions for which approval is required to the effect that the transaction or series of transactions are fair to the Company or such Subsidiary from a financial point of view. The limitations set forth in this paragraph will not apply to (i) transactions entered into pursuant to any agreement already in effect on the Issue Date and any renewals or extensions thereof not involving modifications materially adverse to the Company or any Subsidiary, (ii) normal banking relationships with an Affiliate of on an arms' length basis, (iii) any employment agreement, stock option, employee benefit, indemnification, compensation, business expense reimbursement or other employment-related agreement, arrangement or plan entered into by the Company or any of the Company's Subsidiaries.
(b) In additionits Subsidiaries which agreement, the Company will not, and will not cause arrangement or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of plan was adopted by the Board of Directors of the Company and or such Subsidiary (y) either obtained the approval of including a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted SubsidiaryDisinterested Directors), as the case may be, from a financial point of view (iv) residential mortgage, credit card and (ii) with respect other consumer loans to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contractwho is an officer, agreement director or understanding with, or for the benefit of, or plan for the benefit of employees employee of the Company or any of its Subsidiaries generally (in their capacities as suchand which comply with the applicable provisions of 12 U.S.C. Section 1468(b) that has been approved by the Board of Directors and any rules and regulations of the CompanyOTS thereunder, (iiv) Capital Stock issuances to directorsany Restricted Payment or Permitted Payment, officers (vi) any transaction or series of transactions in which the total amount involved does not exceed $125,000, (vii) purchases on or before March 31, 1997 of loan portfolios acquired by an Affiliate after July 31, 1996 where the purchase price does not exceed the lower of two current independent bids for the loan portfolios or (viii) services rendered and employees of obligations incurred by the Company or any of its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction existing agreements or agreements between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve and/or any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted its Subsidiaries and one or more Unrestricted Subsidiaries where all Wilshire Credit Corporation, a Nevada corporation ("WCC"), and/or Affiliates of WCC entered into on the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryIssue Date.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, enter into, amend or permit or suffer to exist any loantransaction or series of related transactions (including, advancewithout limitation, guarantee the purchase, sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property property, the guaranteeing of any Indebtedness or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company their respective Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under the third paragraph of this Section 4.11 and (y) Affiliate Transactions that are on terms that are fair and reasonable to the Company or the applicable Restricted Subsidiary and are no less favorable to the Company or the applicable Restricted Subsidiary than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who . All Affiliate Transactions (and each series of related Affiliate Transactions which are not such a holder, an Affiliate of such a holder similar or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval part of a majority common plan) involving aggregate payments or other property with a fair market value in excess of $5.0 million shall be approved by the Board of Directors of the Company and (y) either obtained the Company, such approval of to be evidenced by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect Board Resolution stating that such Affiliate Transaction is fair to Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or such any Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Subsidiary enters into an Affiliate Transaction involving (or having a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $50.0 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered shall, prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view., from an Independent Advisor and file the same with the Trustee. The requirements set forth in the first and second paragraphs of this Section 4.11 shall not apply to:
(c1) Notwithstanding (a) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary as determined in their capacities as such) that has been approved good faith by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees or senior management of the Company or its Subsidiaries pursuant to plans approved by such Restricted Subsidiary, as the stockholders of the Company, case may be;
(iii2) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries (Subsidiaries; provided, -------- however, no that such transaction shall involve any other Affiliate of the ------- Company transactions are not otherwise prohibited hereunder; and
(other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a 3) Restricted Payment Payments permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiaryhereunder.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, en- ter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), other than (x) Affiliate --------------------- except for any Transactions permitted under paragraph (b) below and (y) Affiliate Transaction Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $3.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees, consultants or plan for the benefit of employees investment bankers of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management; (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one any of its Wholly Owned Restricted Subsidiaries, or more Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries (providedSubsidiaries, -------- however, no provided such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted transactions are not otherwise prohibited by this -------- Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.;
Appears in 1 contract
Sources: Indenture (Encompass Services Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are 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 terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractemployment, agreement or understanding with, or for the benefit of, or plan for the benefit of employees consulting and compensation arrangements and agreements of the Company or its Subsidiaries generally (in their capacities as such) that has been any Restricted Subsidiary consistent with past practice or approved by a majority of the disinterested members of the Board of Directors (or a committee comprised of the Company, disinterested directors); (ii) Capital Stock issuances reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, officers and employees employees, consultants or agents of the Company or its Subsidiaries pursuant to plans approved any Restricted Subsidiary as determined in good faith by the stockholders Company's Board of the Company, Directors or senior management; (iii) any Restricted Payment otherwise permitted under Section 3.04, consulting fees paid by the Company consistent with past practice; (iv) any transaction transactions exclusively between or among the Company and one or more any of the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, PROVIDED such transactions are not otherwise prohibited by this Indenture; and (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a v) Restricted Payment Payments or Permitted Investments permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Simonds Industries Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any (each of the Company's Subsidiaries foregoing, an “Affiliate Transaction”) involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of $5.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company (including any Affiliates of such holders), or the relevant Restricted Subsidiary than those that would have been obtained in a single comparable transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 million, a resolution adopted by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing provisions will not apply to the following:
(1) transactions, including, without limitation, the sale and lease of assets, between or among the Company and/or any of the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 1010 and Permitted Investments or any transfer of Parent Stock;
(3) the payment of management, consulting, monitoring and advisory fees and related expenses to the Sponsor and its Affiliates in an aggregate amount in any fiscal year not to exceed an amount per annum equal to $2.0 million;
(4) the payment of reasonable and customary fees (including, without limitation, salaries, bonuses and equity) paid to, and indemnities provided on behalf of, officers, directors, employees or consultants of the Company, any direct or indirect parent entity of the Company or any Restricted Subsidiary;
(5) payments by the Company or any Restricted Subsidiary to the Sponsor, and its Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved in the good faith determination of the management of the Company;
(6) transactions in which the Company or any Restricted Subsidiary, as the case may be, in delivers to the Trustee a comparable letter from an Independent Financial Advisor stating that such transaction made on an arm's length basis with Persons who are not is fair to the Company or such Restricted Subsidiary from a holderfinancial point of view or meets the requirements of Section 1013(a)(1);
(7) payments or loans (or cancellation of loans) to employees or consultants of the Company, an Affiliate of such a holder any direct or an Affiliate indirect parent entity of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of which are approved in good faith by a majority of the Board of Directors of the Company;
(8) any agreement, instrument or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment, taken as a whole, is no less favorable to the Company and its Restricted Subsidiaries than the agreement, instrument or arrangement in effect on the date of this Indenture (y) either obtained in the approval good faith determination of a majority the management of the Company's disinterested directors ));
(9) the existence of, or obtained an opinion the performance by the Company or any of a qualified independent financial advisor the Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) and any similar agreements; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of obligations under any such agreement shall only be permitted by this clause (9) to the effect extent that the terms of any such Affiliate Transaction is agreement, taken as a whole, are not disadvantageous to the Holders of the Notes in any material respect (in the reasonable determination of the management of the Company);
(10) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case, in the ordinary course of business or consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Company and the Restricted Subsidiaries, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in each case in the reasonable determination of the management of the Company;
(11) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Affiliate;
(12) transactions or payments pursuant to any employee, officer or director compensation or benefit plans, employment agreements, severance agreement, indemnification agreements or any similar arrangements entered into in the ordinary course of business or approved in the good faith determination of the management of the Company;
(13) transactions in the ordinary course with (i) Unrestricted Subsidiaries or (ii) joint ventures in which the Company or a Subsidiary of the Company holds or acquires an ownership interest (whether by way of Capital Stock or otherwise) so long as the terms of any such transactions are no less favorable to the Company or such Subsidiary participating in such joint ventures than they are to other joint venture partners;
(14) payments permitted under Section 1010(b)(12)(B) by the Company and/or its Subsidiaries;
(15) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(16) transactions by and among Seacastle Inc. and its Subsidiaries and the Company and its Subsidiaries related to shared resource allocations pertaining to compensation-related expenses, including salaries, bonuses, equity, restricted stock costs, customary fees, leases, transportation taxes, and similar expenses (i) incurred in the ordinary course of business or (ii) repaid within 365 days; provided, that the net amount of all such transactions taken as a whole in any calendar year do not exceed $1.0 million;
(17) the Transactions and the payment of all fees and expenses related to the Transactions, in each case, as contemplated by the Offering Memorandum;
(18) any Sale and Lease Back Transactions or other lease obligations by and among Affiliates of the Sponsor and the Company and its Subsidiaries, as the case may be, from a financial point permitted under this Indenture so long as the terms of view and (ii) with respect such transaction are no less favorable to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have or the Restricted Subsidiaries than that which would be obtained in an arm’s length transaction with a non-Affiliate;
(x19) obtained sales of Securitization Assets or assets in connection with any Qualified Securitization Transaction;
(20) the approval licensing or sub-licensing of a majority intellectual property and software, including Poolstat Software, or other general intangibles in the ordinary course of business;
(21) investments by the Sponsor or its Affiliates in securities of the Board Company (other than any security that ranks senior or pari passu with the Notes) or any Restricted Subsidiary of Directors the Company so long as the investment is being or has been offered generally to other investors on the same or more favorable terms or the securities are acquired in market transactions; and
(22) guarantees (but not any consideration paid for such guarantee) by the Sponsor or any direct and indirect parent of the Company of Obligations of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such its Restricted Subsidiary, as the case may be, from a financial point of viewSubsidiaries.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (TRAC Intermodal LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company ▇▇▇▇▇▇ Publishing will not, and will not cause permit any of its Restricted Subsidiaries to, (i) directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any other than (x) Affiliate Transaction Transactions specifically permitted under subsections (1) through (6) of clause (d) of this Section 4.11 and (y) Affiliate Transactions in the ordinary course of business on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made at such time on an arm's arm’s-length basis with Persons who are from a Person that is not such a holder, an Affiliate of ▇▇▇▇▇▇ Publishing or such a holder Restricted Subsidiary or (ii) materially amend, modify or waive any provisions of any agreement, whether written or oral, respecting an Affiliate of Transaction in effect on the Company or any of date hereof; provided, that the Company's SubsidiariesServices Agreement may be amended as provided for in Section 4.24.
(b) In additionSo long as any Notes are outstanding, and notwithstanding anything to the Company contrary herein, ▇▇▇▇▇▇ Publishing will not, and will not cause permit any of its Restricted Subsidiaries to, make or permit to exist any Restricted Subsidiary to, enter into intercompany loans from any Obligor to any Affiliate thereof that is not an Affiliate Transaction unless Obligor other than (i) the Tranche B Loan and (ii) short term intercompany payables between ▇▇▇▇▇▇ Publishing and ▇▇▇▇▇▇ Communications incurred in the ordinary course of business on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary consistent with respect to any such past practices which are settled monthly.
(c) All Affiliate Transaction Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or having other property with a fair market value in excess of more than $10 million, the Company 1.0 million shall have either (xi) obtained the approval of be approved by a majority of the Board of Independent Directors of ▇▇▇▇▇▇ Publishing, but in no event fewer than two Independent Directors of ▇▇▇▇▇▇ Publishing, such approval to be evidenced by a Board Resolution stating that such Independent Directors have determined that such transaction complies with the Company and foregoing provisions or, (yii) either obtained in the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor event there are fewer than two such Independent Directors, ▇▇▇▇▇▇ Publishing shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. If ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of ▇▇▇▇▇▇ Publishing enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5.0 million, ▇▇▇▇▇▇ Publishing shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to ▇▇▇▇▇▇ Publishing or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cd) Notwithstanding Except as expressly permitted below and subject at all times to the restrictions set forth in clause (b) of this Section, the restrictions set forth in clause (a) of this Section shall not apply to:
(1) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit consultants of employees ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of the Company or its Subsidiaries generally (▇▇▇▇▇▇ Publishing as determined in their capacities as such) that has been approved good faith by the ▇▇▇▇▇▇ Publishing’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction Affiliate Transactions between or among the Company and one or more ▇▇▇▇▇▇ Publishing, any of its Restricted Subsidiaries that are Guarantors or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided3) The Services Agreement or, -------- however, no an amendment or replacement agreement thereto so long as any such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary amendment or replacement thereto is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a Services Agreement, as amended in accordance with Section 4.24 as in effect on the Issue Date;
(4) Restricted Payment Payments permitted by this Indenture);
(5) transactions in the ordinary course of business and (v) conducted on an arm’s length basis, exclusively between ▇▇▇▇▇▇ Publishing or any transaction between one or more of its Restricted Subsidiaries and one a joint venture to which ▇▇▇▇▇▇ Publishing or more Unrestricted any of its Restricted Subsidiaries where all is a party; provided, however, that the other party or parties to such joint venture are not Affiliates of ▇▇▇▇▇▇ Publishing, any of its Restricted Subsidiaries or any Permitted Holder; and
(6) the payments toLoan Documents (as defined in the Senior Debt Credit Agreement) as in effect on the Issue Date, or other benefits conferred uponas such documents may be amended, such Unrestricted Subsidiaries are substantially contemporaneously dividendedrestated, supplemented, or otherwise distributed or transferred without chargemodified from time to time in accordance with the Intercreditor Agreement, to the Company or a Restricted Subsidiaryif applicable.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Indenture shall provide that the Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any an Affiliate of the Company or any Affiliate of any Restricted Subsidiary (other than transactions between the Company and a wholly owned Restricted Subsidiary of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction Transactions on terms that are no less favorable in the terms of which aggregate than those that might reasonably have been obtained or are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, obtainable in a comparable transaction made on an arm's arm's-length basis with Persons who are from a person that is not such a holder, an Affiliate of such a holder or an Affiliate of Affiliate; provided that neither the Company or nor any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, Subsidiaries shall enter into an Affiliate Transaction unless (i) with respect to any such or series of related Affiliate Transaction Transactions involving or having a value of more than $10 millionmillion or more, the Company shall have (x) obtained the approval of unless a majority of disinterested members of the Board of Directors of the Company and (y) either obtained determines in good faith as evidenced by a board resolution that the approval of a majority of terms are no less favorable in the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair aggregate to the Company or such Restricted Subsidiary, as the case may be, than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionPerson that is not an Affiliate; provided, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect however, that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, employment agreement or understanding withstock option agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, or for (ii) transactions permitted under the benefit of, or plan for covenant described above under "Certain Covenants--Limitation on Restricted Payments," (iii) the benefit payment of employees reasonable fees and expenses to directors of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04Subsidiaries, (iv) any transaction between issuance of securities or among other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans of the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate entered into in the ordinary course of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) business and (v) transactions pursuant to agreements existing on the Issue Date or any transaction between one amendment thereto or any transactions contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto, so long as any such amendment or replacement is not more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, disadvantageous to the Company or a Restricted Subsidiaryholders in any material respect than the original agreement as in effect on the Issue Date, in each case, shall not be deemed Affiliate Transactions.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the 41 -41- Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractreasonable fees and compensation paid to and indemnity provided on behalf of officers, agreement directors, employees or understanding with, or for the benefit of, or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries generally or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in their capacities effect as suchof the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by Section 4.06 of this Indenture; (v) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of, its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter, provided, however, that has been approved the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (v) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in any material respect; (vi) transactions permitted by, and complying with, the provisions of Section 5.01 of this Indenture; (vii) the Recapitalization and the transactions contemplated by the Recapitalization Agreement; (viii) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary; and (ix) transactions with customers, franchisees, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments tosenior management thereof, or other benefits conferred upon, are on terms at least as favorable as might reasonably have been obtained at such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarytime from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Roma Fort Worth Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company ▇▇▇▇▇▇ Publishing will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under the second succeeding paragraph below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of which are at least as favorable as the terms which could be obtained by the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary, as the case may be, . All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate excess of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless $1.0 million shall either (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of be approved by a majority of the Board of Independent Directors of ▇▇▇▇▇▇ Publishing, but in no event fewer than two Independent Directors of ▇▇▇▇▇▇ Publishing, such approval to be evidenced by a Board Resolution stating that such Independent Directors have determined that such transaction complies with the Company and foregoing provisions or, (yii) either obtained in the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor event there are fewer than two such Independent Directors, ▇▇▇▇▇▇ Publishing shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) , from an Independent Financial Advisor and (b) above , file the same with the Trustee. If ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of ▇▇▇▇▇▇ Publishing enters into an Affiliate Transaction will (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5.0 million, ▇▇▇▇▇▇ Publishing shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to ▇▇▇▇▇▇ Publishing or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this covenant shall not include apply to:
(i1) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit consultants of employees ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of the Company or its Subsidiaries generally (▇▇▇▇▇▇ Publishing as determined in their capacities as such) that has been approved good faith by the ▇▇▇▇▇▇ Publishing’s Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company ▇▇▇▇▇▇ Publishing and one or more any of its Restricted Subsidiaries that are Guarantors or exclusively between or among such Restricted Subsidiaries that are Guarantors, provided such transactions are not otherwise prohibited by this Indenture;
(provided3) the Services Agreement or, -------- however, no an amendment or replacement agreement thereto so long as any such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary amendment or replacement agreement is not more disadvantageous to the extent Holders in any material respect than the applicable amount constitutes a original agreement as in effect on the Issue Date;
(4) Restricted Payment Payments permitted by this Indenture);
(5) transactions in the ordinary course of business exclusively between ▇▇▇▇▇▇ Publishing or any of its Restricted Subsidiaries and a joint venture to which ▇▇▇▇▇▇ Publishing or any of its Restricted Subsidiaries is a party; provided, however, that the other party or parties to such joint venture are not Affiliates of ▇▇▇▇▇▇ Publishing, any of its Restricted Subsidiaries or any Permitted Holder; and
(6) transactions pursuant to clauses (11) and (v12) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all under the definition of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary“Permitted Investments.”
Appears in 1 contract
Sources: Indenture (Oak Ridger LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company The Issuers will not, and will not cause permit any of their Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company their Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Issuers or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $2.5 million shall be approved by a majority of the disinterested members of the Board of Directors of the Issuers or a majority of the disinterested members, if any, of the Board of Directors of such Restricted Subsidiary (or, the entire Board of Directors, in the event there are no disinterested members of the Board of Directors of such Restricted Subsidiary), as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the provisions set in this paragraph. If the Issuers or any Restricted Subsidiary of the Issuers enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate Fair Market Value of more than $10.0 million, the terms of which are at least as favorable as the terms which could be obtained by the Company Issuers or such Restricted Subsidiary, as the case may be, in shall, prior to the consummation thereof, obtain a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor related transactions to the effect that such Affiliate Transaction is fair to Issuers or the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in the first paragraph of this Section 4.17 shall not apply to:
(a1) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Issuers or any Restricted Subsidiary of the Issuers as determined in good faith by the Company's Board of Directors or senior management;
(2) transactions exclusively between or among the Issuers and any of their Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(3) the Refinancing Transactions or any agreement as in effect on the Issue Date (including any transaction expressly provided for therein) and (b) above , an Affiliate Transaction will not include any amendment thereto or any replacement agreement thereto so long as (i) any contractsuch amendment or replacement agreement is not more disadvantageous to the Holders, in any material respect, than the original agreement as in effect on the Issue Date, provided that this clause (i) shall not apply to any amendment or understanding with, or for the benefit of, or plan for the benefit of employees replacement agreement in respect of the Company TCBY Supply Agreement, and (ii) any such amendment or its Subsidiaries generally (in their capacities as such) that has been replacement agreement shall be approved by a majority of the disinterested members of the Board of Directors of the CompanyCompany or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that the terms of such amendment or replacement agreement comply with the provisions set forth in clause (a) of this Section 4.17 (provided that no fairness opinion need be delivered under such clause in the case where such amendment or replacement agreement is in respect of the TCBY Supply Agreement) and Section 4.10 and the terms of this clause (3);
(4) Restricted Payments permitted by this Indenture and Affiliate Transactions that constitute Permitted Investments;
(5) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment related agreements, arrangements or plans entered into by the Issuers or any of their Restricted Subsidiaries in the ordinary course of business;
(6) payments pursuant to or other transactions expressly provided for under the Contribution Agreement, the Management Agreement, the Contribution Agreement, the Tax Allocation Agreement, the MFOC Franchise Agreements, the TCBY Supply Agreement, the Sublease or the Collection Agency Agreement, in each case as in effect on the Issue Date, or any amendment thereto or any replacement agreement thereto so long as (i) any such amendment or replacement agreement is not more disadvantageous to the Holders, in any material respect, than the original agreement as in effect on the Issue Date, and (ii) any such amendment or replacement agreement shall be approved by a majority of the disinterested members of the Board of Directors of the Issuers or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that the terms of such amendment or replacement agreement comply with the provisions set forth in clause (a) of this Section 4.17 and Section 4.10 and the terms of this clause (6);
(7) issuance of Qualified Capital Stock issuances of the Company and the granting of registration rights with respect to directors, such Qualified Capital Stock; provided such registration rights are permitted under the Registration Rights Agreements;
(8) any transaction on arm's-length terms with a non-Affiliate that becomes an Affiliate as a result of such transaction; and
(9) arrangements with directors or officers and employees of the Company or its Subsidiaries pursuant to plans any Restricted Subsidiary existing on the Issue Date as disclosed in the Offering Circular and in effect on the Issue Date or as modified thereafter; provided that any such modification shall be approved by the stockholders a majority of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate disinterested members of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all Board of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to Directors of the Company or a such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that the terms of such modification comply with the provisions set forth in the first paragraph of this Section 4.17.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property Property or assets to, to or for the benefit of, or purchase or lease any property Property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, (i) any Affiliate of the Company or Company, (ii) any Affiliate of any of the Company's Subsidiaries or ’s Subsidiaries, (iii) any holder of 10% or more of the Common Equity of the Company or (including iv) any Affiliates of such holdersholders (collectively, “Affiliated Persons”), in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could reasonably be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length arm’slength basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's SubsidiariesAffiliated Persons.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless Transaction:
(i) with in the case of transfers of real property involving more than $10,000,000, unless the consideration paid in respect to any such Affiliate Transaction involving or thereof exceeds the greatest of not less than three Independent Valuations, and
(ii) in all other cases:
(A) having a value of more than $10 million, 2,000,000 unless the Company shall have (x) obtained the approval terms of a majority of the Board of Directors of the Company such Affiliate Transaction are set forth in writing and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained ’s Governing Body has determined in good faith that the criterion set forth in the immediately preceding paragraph has been satisfied, and
(B) having a value of more than $5,000,000 unless the terms of such Affiliate Transaction are set forth in writing and the Company has received a written opinion from an opinion of a qualified independent financial advisor Independent Qualified Party to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view and (ii) with respect standpoint, to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction its Restricted Subsidiaries or is fair not less favorable to the Company or such and its Restricted Subsidiary, as Subsidiaries than could reasonably be expected to be obtained at the case may be, from time in an arm’s-length transaction with a financial point of viewPerson who is not an Affiliated Person.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include include:
(i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of of, employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors Governing Body of the Company, ,
(ii) Capital Stock Equity Interests issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders holders of Equity Interests of the Company, ,
(iii) any Permitted Investment (other than Permitted Investments described in clause (3)(b) of the definition of “Permitted Investments”) or Restricted Payment otherwise permitted under Section 3.044.07, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company Affiliated Person (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this the Indenture)) and ),
(v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary,
(vi) any Affiliate Transactions consummated in accordance with written agreements existing on the Issue Date with Affiliates, or entities in which an Affiliate owns an interest, including amendments thereto that are no more favorable to the Affiliate in any material respect than the terms existing on the Issue Date,
(vii) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or such Restricted Subsidiary, as the case may be, the Corporate Issuer or any Restricted Subsidiary, and
(viii) any transaction with an Affiliate that is a joint venture in which the Company or any Restricted Subsidiary has a direct or indirect equity interest so long as the other joint venture partners not constituting Affiliates of the Company or such Restricted Subsidiary, as the case may be, approve the subject transaction.
Appears in 1 contract
Sources: Indenture (Vistancia Marketing, LLC)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under the third paragraph below or (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments with a fair market value in excess of $7.5 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a -70- common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 20.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view., from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this Section 4.11 shall not apply to:
(c1) Notwithstanding (a) reasonable fees and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, or senior management;
(ii2) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;
(provided3) any agreement, -------- howeveror any arrangement the terms of which have been disclosed prior to the Issue Date in the Offering Memorandum, no such transaction shall involve any other Affiliate as in effect as of the ------- Company Issue Date or any amendment or replacement agreement thereto or any transaction contemplated thereby (other than an Unrestricted Subsidiary including pursuant to any amendment or replacement agreement thereto) so long as any such amendment or replacement agreement taken as a whole is not materially more disadvantageous to the extent Holders than the applicable amount constitutes a Restricted Payment original agreement as in effect on the Issue Date;
(4) payments and Investments permitted by this Indenture);
(5) the payment of fees and expenses incurred in connection with the going-private merger transaction and related transactions consummated on March, 28, 2003;
(6) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise (other than issuances, payments, awards or grants to David H. Murdock) pursuant to, or the funding of, employment ▇▇▇▇▇▇▇▇▇▇▇▇, ▇mployee stock options and employee stock ownership plans approved by the applicable Board of Directors;
(7) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries consistent with the past practice;
(8) transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture;
(v9) any transaction between one or more Restricted Subsidiaries on arm's-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction;
(10) purchases and one or more Unrestricted Subsidiaries where sales of product and raw materials, insurance arrangements and payments, all of the payments toforegoing in the ordinary course of business consistent with past practice or as may be necessary to accommodate legal, regulatory or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, changes in the business of the Company and its Restricted Subsidiaries;
(11) employment agreements and similar arrangements with employees and independent contractors other than David H. Murdock;
(12) the issuance and sale of Qu▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stock; and
(13) payments made pursuant to the following conditions: if the Company is to file consolidated federal income tax returns with Holdings or combined or unitary state income tax returns with Holdings, the Company may enter into a Restricted Subsidiarytax sharing agreement with Holdings and may pay to Holdings amounts when due and payable pursuant to such tax sharing agreement in respect of amounts of tax due with respect to such consolidated, combined or unitary returns and any additional taxes due from time to time as a result of any audit thereof, as the case may be, in each case in an amount not to exceed the amount of tax that the Company would have been obligated to pay to the appropriate taxing authority if the Company and its Subsidiaries had filed a hypothetical separate consolidated, combined or unitary return for the then current year and all prior years ending after the Issue Date.
Appears in 1 contract
Sources: Indenture (Dole Food Company Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) Neither the Company will notnor any of its Subsidiaries will, and will not cause directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for of its Affiliates (other than transactions between the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate Company and a Wholly Owned Subsidiary of the Company or any Affiliate of any among Wholly Owned Subsidiaries of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a person that is not such an Affiliate; provided, however, that for a holder, an Affiliate transaction or series of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction related transactions involving or having a value of more than $10 million5.0 million or more, the Company shall have (x) obtained the approval of such determination will be made in good faith by a majority of members of the Board of Directors of the Company and (y) either obtained the approval of by a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority members of the Board of Directors of the Company, if any; provided, further, that for a transaction or series of related transactions involving value of $15.0 million or more, the Board of Directors of the Company and (y) delivered to the Trustee has received an opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking firm that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction to the Company or such Subsidiary. The foregoing restrictions will not include apply to (i1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees obligations of the Company under the Financial Monitoring and Oversight Agreements, or any employment agreement, noncompetition or confidentiality agreement with any officer of the Company (provided that each amendment of any of the foregoing agreements shall be subject to the limitations of this covenant), (3) reasonable and customary investment banking, financial advisory, commercial banking and similar fees and expenses paid to the Initial Purchaser and its Subsidiaries generally Affiliates, (4) any Restricted Payment permitted to be made pursuant to Section 4.10, (5) any issuance of securities, or other payments, awards or grants in their capacities as such) that has been cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii6) Capital Stock issuances loans or advances to directors, officers and employees in the ordinary course of business of the Company or any of its Subsidiaries pursuant to plans approved by consistent with past practices, and (7) the stockholders issuance of Capital Stock of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureDisqualified Stock)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, payment to or sell, lease, transfer or otherwise dispose of any property of their properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions Issuers (each, an "“Affiliate Transaction"”), --------------------- except for any unless:
(i) the Affiliate Transaction is on terms that are no less favorable to the terms of which are at least as favorable as the terms which could be Company or such Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on Subsidiary with an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.unrelated Person; and
(bii) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, such transaction is approved by a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of complies with this Section 4.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company Company; and (y2) either obtained with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the approval Company obtains an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a majority financial point of view issued by an accounting, 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 provisions of Section 4.13(a):
(i) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company's disinterested directors ) that is an Affiliate of the Company solely because the Company owns, directly or obtained through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Company or payment of interest on the Notes, if applicable, to Affiliates of the Company;
(vi) Restricted Payments that do not violate the provisions of Section 4.09 or is a Permitted Investment;
(vii) loans or advances to employees in the ordinary course of business not to exceed $2.0 million in the aggregate at any one time outstanding;
(viii) the Management Agreement and the payment of all or any portion of the management fees and reimbursement of out-of-pocket expenses to the extent provided for in the Management Agreement so long as, in the case of management fees, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto;
(ix) transactions in which the Company delivers to the trustee a written opinion of a qualified from an independent financial advisor to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries of the Company;
(x) any contribution of capital to the Company;
(xi) any agreement or arrangement (other than the Management Agreement) as in effect on the Issue Date and disclosed in the Offering Memorandum and any amendment or modification thereto, provided that such Affiliate Transaction amendment or modification is fair not disadvantageous to the Company and any relevant Restricted Subsidiary of the Company or to the Holders in any material respect; and
(xii) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, from as determined in good faith by the Company, than those that could be obtained in a financial point comparable arm’s length transaction with a Person that is not an Affiliate of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company its Affiliates (including any Affiliates of such holders), in a single transaction or series of related transactions (each, each an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are at least as favorable as similar or part of a common plan) that involve an aggregate fair market value of more than $2 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 5 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries generally or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in their capacities effect as suchof the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) that has been approved or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) transactions with distributors or other purchases or sales of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture and which are fair to the Company or the Restricted Subsidiaries as applicable, in the reasonable determination of the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Companysenior management thereof, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no are on terms at least as favorable as might reasonably have been obtained at such transaction shall involve any other Affiliate of the ------- Company (other than time from an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) unaffiliated party; and (vvi) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryCT Film Purchase.
Appears in 1 contract
Sources: Indenture (Huntsman Packaging Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, any of its Affiliates (each an "“Affiliate Transaction"”) involving aggregate payments or consideration in excess of $1.0 million, other than
(1) Affiliate Transactions permitted under Section 4.16(b), --------------------- except for any and
(2) Affiliate Transaction the Transactions on terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who that are not such materially less favorable, taken as a holderwhole, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a financial point Person that is not an Affiliate of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have or such Restricted Subsidiary. All Affiliate Transactions (x) obtained the approval and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $2.5 million shall be approved by a majority of the members of the Board of Directors of the Company (including a majority of the disinterested members thereof, if there are disinterested members), a committee of disinterested directors or the audit committee, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions and (y) delivered the Company shall deliver an Officers’ Certificate to the Trustee certifying that such transactions are in compliance with clause (a)(2) of this Section 4.16. If the Company or any Restricted Subsidiary of the Company enters into an opinion Affiliate Transaction (or a series of related Affiliate Transactions related to a qualified independent financial advisor common plan) that involves an aggregate Fair Market Value of more than $7.5 million, the Company shall, prior to the effect that consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of viewan Independent Financial Advisor and file the same with the Trustee.
(c) Notwithstanding (a) and (b) above The restrictions set forth in Section 4.16(a) shall not apply to:
(1) payment or provision, an Affiliate Transaction will not include (i) any contractas applicable, agreement or understanding with, or for the benefit of reasonable fees and compensation paid to and indemnity and insurance provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company’s Board of Directors;
(2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries generally (including any entity that becomes a Restricted Subsidiary as a result of such transaction) or exclusively between or among such Restricted Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(3) any agreement or transaction as in their capacities effect as suchof the Issue Date or any transaction contemplated thereby or performance of obligations thereunder and any amendment, modification, supplement or renewal thereof or thereto or any replacement agreement thereto, and transactions contemplated thereby, so long as any such amendment, modification, supplement or renewal thereof or thereto or replacement agreement is not materially more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(4) Restricted Payments permitted by this Indenture and Permitted Investments;
(5) any employment, stock option, stock repurchase, employee benefit, compensation, business expense reimbursement, severance, termination or other employment-related agreements, arrangements or plans entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or the transactions contemplated thereby or performance of obligations thereunder;
(6) transactions between the Company or any Restricted Subsidiary and any person that has been approved by is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent entity of the Company; provided that such director abstains from voting as a director of the Company on any matter involving such other Person;
(7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors of the CompanyCompany or the relevant Restricted Subsidiary, (ii) Capital Stock issuances or are on terms that are not materially less favorable, taken as a whole, to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Companysuch Restricted Subsidiary, as applicable, as would reasonably have been obtained at such time from an unaffiliated party;
(iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) 8) any transaction between or among the Company or any Restricted Subsidiary, on the one hand, and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this IndentureSubsidiary)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of , on the payments toother hand, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Affiliate;
(9) issuances or sales of Qualified Capital Stock of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(10) any capital contribution to any Affiliate otherwise permitted by this Indenture and pledges of Capital Stock of Unrestricted Subsidiaries;
(11) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of (a) forming or collapsing a holding company structure or (b) reincorporating the Company in a new jurisdiction;
(12) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view; and
(13) any purchases by the Company’s Affiliates of Indebtedness or Disqualified Capital Stock of the Company or any of its Restricted Subsidiaries the majority of which Indebtedness or Disqualified Capital Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates.
Appears in 1 contract
Sources: Indenture (American Apparel, Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any Restricted Subsidiary to, make any loandirectly or indirectly, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service or the lending of any funds) with or for the benefit of any of its Affiliates (each an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of other than such transactions as are entered into and conducted in good faith and which are at least as on terms no less favorable as the terms which could be obtained by to the Company or such Restricted Subsidiary, as the case may be, Subsidiary than those that could have been obtained in a comparable transaction made on an arm's arm's-length basis with Persons who are from a Person that is not such an Affiliate. All Affiliate Transactions or series of Affiliate Transactions involving aggregate payments or other market value in excess of (euro)2,000,000 must also be approved, prior to the consummation thereof, by a holder, an Affiliate of such a holder or an Affiliate majority of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority disinterested members of the Board of Directors of the Company and evidenced by a Board Resolution. Any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments or other market value in excess of (y) either obtained euro)5,000,000 or as to which there are no disinterested directors, is also subject to the approval of a majority of further requirement that the Company's disinterested directors or obtained Company obtain an opinion of an Independent Financial Advisor with experience in appraising the terms and conditions of the relevant type of transaction (or series of transactions) stating that the transaction (or a qualified independent series of transactions) is fair, from a financial advisor to the effect that such Affiliate Transaction is fair point of view, to the Company or such Restricted Subsidiary.
(b) The foregoing restrictions will not apply to (i) transactions solely between the Company and any Restricted Subsidiary or among its Restricted Subsidiaries, as the case may be, from a financial point of view and (ii) reasonable and customary fees and compensation and indemnification and similar arrangements and transactions pursuant to contracts with respect to any such Affiliate Transaction involving officers, directors, employees or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors consultants of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Companypayments thereunder, (iii) arrangements in effect on the Issue Date and amendments or renewals thereof that are not more disadvantageous to the Holders in any Restricted Payment otherwise permitted under Section 3.04material respect than the original agreements as in effect on the Issue Date, (iv) any transaction between or among transactions permitted by, and complying with the Company provisions of Section 5.1; (v) Restricted Payments (including Permitted Payments) made in accordance with Section 4.4 and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate vi) the issuance and sale of the ------- Company Capital Stock (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)Disqualified Capital Stock) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiaryfor cash.
Appears in 1 contract
Sources: Senior Indenture (Head Nv)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will not cause or shall the Company permit any Restricted Subsidiary of its Subsidiaries to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend permit to exist any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions with any officer, director or Affiliate of such Person (each, an "“Affiliate Transaction")”) other than (a) advances of working capital to the Company or a Subsidiary Guarantor, --------------------- except for any (b) transfers of cash and assets to the Company or a Subsidiary Guarantor, (c) intercompany transactions expressly permitted by this Indenture, (d) reasonable compensation and reimbursement of expenses of officers and directors, (e) Affiliate Transaction Transactions in existence on the terms date of which are at least as favorable as this Indenture, (f) transactions pursuant to the terms which could be obtained Shared Services Agreements; provided that (i) the aggregate consideration payable by the Company or and its Subsidiaries during any fiscal year shall not exceed $420,000 and (ii) such Restricted Subsidiarytransactions shall be permitted only if not otherwise prohibited by this Indenture, other transactions which are entered into in the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as the case may be, favorable to such Person as would be obtainable by it in a comparable arms-length transaction made on with a Person other than an arm's length basis with Persons who are not such a holderofficer, an Affiliate director or Affiliate; provided that for purposes of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
this clause (b) In additiong), the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to for any such Affiliate Transaction involving or having a value aggregate consideration in excess of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include 5,000,000 (i) other than for any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of financing that is provided by an Affiliate to the Company or its Subsidiaries generally and not secured by a Lien on Collateral that is senior to or pari passu with the Lien securing the Notes Obligations, a fairness opinion shall have been provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction (in with a copy thereof made available to the Holders upon their capacities as suchrequest) that has been approved by the Board of Directors of the Company, and (ii) Capital Stock issuances to directors, officers and employees 100% of the aggregate consideration payable to the Company and its Subsidiaries with respect to such Affiliate Transaction shall be paid in cash or Cash Equivalents; provided further that notwithstanding the foregoing, the Company shall not, nor shall the Company permit any of its Subsidiaries to, directly or indirectly, enter into any Affiliate Transaction with respect to any of the Specified Assets unless (x) a fairness opinion shall have been provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction (with a copy thereof made available to the Holders upon their request) and (y) 100% of the aggregate consideration payable to the Company and its Subsidiaries with respect to such Affiliate Transaction shall be paid in cash or Cash Equivalents. Other than amounts under the Shared Services Agreements, the Notes and the Credit Agreement, the aggregate consideration payable by the Company and its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) all Affiliate Transactions during any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction fiscal year shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarynot exceed $10,500,000.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions permitted under the third paragraph of this covenant and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 5.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) , issued by an Independent Financial Advisor and (b) above , an Affiliate Transaction will file the same with the Trustee. The restrictions set forth in the first paragraph of this Section 4.11 shall not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments apply to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.:
Appears in 1 contract
Sources: Indenture (Commemorative Brands Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate AFFILIATE Transaction"), --------------------- except for any other than
(i) Permitted Affiliate Transaction the Transactions, and
(ii) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an . With respect to all Affiliate of such a holder or an Transactions (other than Permitted Affiliate of the Company or any of the Company's Subsidiaries.Transactions):
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any if such Affiliate Transaction involving involves aggregate payments or having other property with a value Fair Market Value in excess of more than $10 million, the Company shall have (x) obtained the approval of 10.0 million it will be approved by a majority of the members of the Board of Directors of the Company and (y) either obtained the approval of including a majority of the Company's disinterested directors or obtained an opinion members thereof), such approval to be evidenced by a Board Resolution stating that such Board of a qualified independent financial advisor to Directors has determined that such transaction complies with the effect that foregoing provisions; and
(ii) if such Affiliate Transaction is fair involves an aggregate Fair Market Value of more than $25.0 million, the Company will, prior to the consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view an Independent Financial Advisor and (ii) file the same with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company Agent. The restrictions set forth in this covenant shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered not apply to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiaryfollowing transactions (collectively, as the case may be, from a financial point of view."PERMITTED AFFILIATE TRANSACTIONS"):
(c1) Notwithstanding (a) reasonable fees and (b) above compensation paid to, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, Subsidiary;
(iv2) any transaction transactions exclusively between or among the Company and one or more any of its Wholly-Owned Restricted Subsidiaries or exclusively between or among Wholly-Owned Restricted Subsidiaries;
(3) any agreement as in effect as of the Closing Date or any transaction contemplated thereby and any amendment thereto or any replacement agreement thereto, so long as any such amendment or replacement agreement is not more disadvantageous to the Lenders, the Company or the Restricted Subsidiaries in any material respect than the original agreement as in effect on the Closing Date;
(provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a 4) Restricted Payment Payments permitted by this IndentureAgreement (except for Restricted Payments described in Section 6.3(b)(16)) and or Permitted Investments;
(v5) any merger or other transaction between one with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all creating a holding company of the payments toCompany;
(6) any reasonable employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other benefits conferred uponemployment-related agreements, such Unrestricted Subsidiaries are substantially contemporaneously dividended, arrangements or otherwise distributed or transferred without charge, to plans entered into in good faith by the Company or a any of its Restricted SubsidiarySubsidiaries in the ordinary course of business;
(7) any loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or the Restricted Subsidiaries; and
(8) any issuance of Qualified Capital Stock of the Company.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Company and the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, to or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's ’s Subsidiaries involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), $7.5 million in a single transaction or series of related transactions (each, an "“Affiliate Transaction"”), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm’s-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's ’s Subsidiaries.
(b) In addition, the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless unless:
(i) with respect to any such Affiliate Transaction involving or having a value of more than $10 15.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's ’s disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view and view, and
(ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 30.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include include:
(i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of of, employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, ;
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, ;
(iii) any Restricted Payment otherwise permitted under Section 3.044.07 hereof or any Permitted Investment (other than a Permitted Investment referred to in clause (b) of the definition thereof, except as permitted by clause (iv) below);
(iv) any transaction between or among the Company and and/or one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and any Guarantees issued by the Company or a Restricted Subsidiary for the benefit of the Company or a Restricted Subsidiary, as the case may be, in accordance with Section 4.06;
(v) any transaction between the Company or one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries (1) where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary or (2) in the ordinary course of business, including, without limitation, sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of (A) homes, improved land and unimproved land and (B) real estate (including related amenities and improvements);
(vi) issuances, sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between Restricted Subsidiaries and Unrestricted Subsidiaries of the Company;
(vii) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, the Issuer or any Restricted Subsidiary;
(viii) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee an opinion of a qualified independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that 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;
(ix) any agreement or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date);
(x) transactions with joint ventures entered into in the ordinary course of business, including, without limitation, sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of (A) homes, improved land and unimproved land and (B) real estate (including related amenities and improvements);
(xi) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns Capital Stock in or otherwise controls such Person;
(xii) the issuance and transfer of Capital Stock of the Company and the granting and performance of customary registration rights;
(xiii) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, in the ordinary course of business;
(xiv) intellectual property licenses in the ordinary course of business;
(xv) transactions between the Company or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Company; provided, however, that such director abstains from voting as a director of the Company on any matter involving such other Person; and
(xvi) pledges of Capital Stock of Unrestricted Subsidiaries.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) The Company and the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, to or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless unless:
(i) with respect to any such Affiliate Transaction involving or having a value of more than $10 1 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view and view, and
(ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above the foregoing, an Affiliate Transaction will not include include:
(i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of of, employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, ,
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, ,
(iii) any Restricted Payment otherwise permitted under Section 3.04, 3.3 hereof,
(iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this the Indenture)) and ),
(v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary,
(vi) issuances, sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between Restricted Subsidiaries and Unrestricted Subsidiaries of the Company, and
(vii) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, the Issuer or any Restricted Subsidiary.
Appears in 1 contract
Sources: First Supplemental Indenture (Hovnanian Enterprises Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make directly or indirectly, enter into any loantransaction or series of related transactions (including, advancewithout limitation, guarantee the sale, purchase, exchange or capital contribution tolease of assets, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, services) with any Affiliate of (including entities in which the Company or any Affiliate of any of the Company's its Restricted Subsidiaries own a minority interest) or any holder of 10% or more of the Company's Common Equity of the Company Stock (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction")) or extend, --------------------- except for renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company 58 -50- and its Wholly-Owned Subsidiaries; or (ii) the terms of which such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or between unaffiliated parties. In any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving an amount or having a value in excess of more than $10 million1,000,000 which is not permitted under clause (i) above, the Company shall have (xsuch Affiliate Transaction(s) obtained the approval of must be approved by a majority of the Board of Directors of the Company and (y) either obtained the approval of including a majority of the Company's disinterested directors or obtained an opinion directors). In transactions with a value in excess of a qualified independent financial advisor $3,000,000 which are not permitted under clause (i) above, in addition to the effect that such Affiliate Transaction is fair to requirements set forth in the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionimmediately preceding sentence, the Company shall have (x) obtained must obtain a written opinion as to the approval fairness of such a majority transaction from a nationally recognized expert with experience in appraising the terms of conditions of the Board type of Directors business or transaction or series of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction transactions for which approval is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction required. The foregoing provisions will not include apply to (i) any contract, agreement Restricted Payment that is not prohibited by the provisions of Section 4.04 or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as suchii) that has been any transaction approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees with an officer or director of the Company or its Subsidiaries pursuant to plans approved by the stockholders of any Subsidiary of the CompanyCompany in his or her capacity as officer or director entered into in the ordinary course of business, (iii) including compensation and employee benefit arrangements with any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between officer or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate director of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiaryof any Subsidiary of the Company that are customary for public companies in the radio broadcasting industry.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) Neither the Company will notnor any of its Subsidiaries will, and will not cause directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction (including, make without limitation, the purchase, sale, lease or exchange of any loan, advance, guarantee property or capital contribution to, the rendering of any service) with or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for of its Affiliates (other than transactions between the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate Company and a Wholly Owned Subsidiary of the Company or any Affiliate of any among Wholly Owned Subsidiaries of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company ) (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than Affiliate Transaction the Transactions on terms of which that are at least as no less favorable as the terms which could be than those that might reasonably have been obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm's-length basis with Persons who are from a Person that is not such an Affiliate; provided, however, that for a holder, an Affiliate transaction or series of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction related transactions involving or having a value of more than $10 million2,000,000 or more, the Company shall have (x) obtained the approval of such determination will be made in good faith by a majority of the Board members of Directors the board of directors of the Company and (y) either obtained the approval of by a majority of the disinterested members of the board of directors of the Company's disinterested , if any; provided, further, that for a transaction or series of related transactions involving value of $10,000,000 or more, the board of directors or obtained of the Company has received an opinion of from a qualified independent financial advisor to the effect nationally recognized investment banking firm that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may befair, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of to the Company or such Subsidiary. The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder, (2) any employment, noncompetition or confidentiality agreement with any officer of the Company, (3) reasonable and customary investment banking, financial advisory, commercial banking and similar fees and expenses paid to BT Securities Corporation and its Subsidiaries generally Affiliates, (4) any Restricted Payment permitted to be made pursuant to the covenant described under Section 4.03, (5) any issuance of securities, or other payments, awards or grants in their capacities as such) that has been cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company, (ii6) Capital Stock issuances loans or advances to directors, officers and employees in the ordinary course of business of the Company or any of its Subsidiaries pursuant to plans approved by the stockholders of the Companyconsistent with past practices, (iii7) payments made in connection with any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between acquisitions or among dispositions by the Company and one or more Restricted its Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.which acquisitions
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, make any loan, advance, guarantee directly or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or indirectly enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (eachincluding, without limitation, the sale, purchase or lease of any assets or properties or the rendering of any services) involving aggregate consideration in excess of $5 million with any Affiliate (other than a Person that constitutes an "Affiliate Transaction"), --------------------- solely because of the Company’s or its Subsidiary ‘s control of such Person) or holder of 5% or more of any class of Capital Stock of the Company except for transactions (including any loans or advances by or to, or Guarantee on behalf of, any Affiliate Transaction or any such holder) made in good faith the terms of which are fair and reasonable to the Company or such Subsidiary, as the case may be, and are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's arm’s-length basis with Persons who are not such a holder, holder or Affiliate; provided that
(i) any such transaction shall be conclusively deemed to be on terms which are fair and reasonable to the Company or any of its Subsidiaries and on terms which are at least as favorable as the terms which could be obtained on an Affiliate of arm’s-length basis with Persons who are not such a holder or an Affiliate if such transaction is approved by a majority of the Company’s Board of Directors (including a majority of the Company’s independent directors); and
(ii) with respect to the purchase or disposition of assets of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or its Subsidiaries having a net book value in excess of more than $10 15 million, in addition to approval of its Board of Directors, the Company shall have (x) obtained the approval of obtain a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an written opinion of a qualified independent financial advisor to an Independent Financial Advisor stating that the effect that terms of such Affiliate Transaction is transaction are fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted its Subsidiary, as the case may be, from a financial point of view; provided that the fairness, reasonableness and arm’s-length nature of the terms of any transaction which is part of a series of related transactions may be determined on the basis of the terms of the series of related transactions taken as a whole.
(cb) Notwithstanding Clause (a) and (b) above , an Affiliate Transaction will of this Section 4.11 shall not include apply to
(i) transactions between the Company or any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees its Subsidiaries and any employee of the Company or any of its Subsidiaries generally (in their capacities as such) that has been are approved by the Board of Directors or any committee of the Board of Directors consisting of the Company’s independent directors; provided that the terms of such transaction are at least as favorable as the terms which could be obtained by the Company or its Subsidiaries, as the case may be, in a comparable transaction or consistent with past practice;
(ii) Capital Stock issuances the payment of reasonable and customary regular fees to directors, officers and employees directors of the Company or its Subsidiaries pursuant to plans approved by the stockholders a Subsidiary of the Company, ;
(iii) any Restricted Payment otherwise permitted under Section 3.04, transaction between the Company and any of its Consolidated Subsidiaries or between any of its Consolidated Subsidiaries;
(iv) any transaction between or among the Company Permitted Payment and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted not otherwise prohibited by this Indenture)) and Section 4.08; or
(v) any transaction between one or more Restricted Subsidiaries the provision of general corporate administrative, operating and one or more Unrestricted Subsidiaries where all management services, including, without limitation, procurement, construction engineering, construction administration, legal, accounting, financial, money management, risk management, personnel, administration and business planning services, in each case, in the ordinary course and provided that the terms of such provision of services are at least as favorable as the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to terms which could be obtained by the Company or its Subsidiaries, as the case may be, in a Restricted Subsidiarycomparable transaction made on an arm’s-length basis.
Appears in 1 contract
Sources: Senior Indenture (Aes Corporation)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable -45- transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any Restricted Subsidiary of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior a series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any contractRestricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not -------- otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or understanding withany amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or for such Restricted Subsidiary from a financial point of view or meets the benefit requirements of the first sentence of paragraph (a) above; (vi) the existence of, or plan for the benefit 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 agree- ment related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that -------- ------- the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after that Issue Date shall only be permitted by this clause to the extent that the terms of any such, amendment or new agreement are not otherwise disadvantageous to the holders of the Securities in any material respect; (vii) loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith; (viii) the payment of all fees and expenses related to the Transactions; and (ix) transactions with customers, (ii) Capital Stock issuances clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to directorsthe Company or its Restricted Subsidiaries, officers and employees in the reasonable determination of the Board of Directors of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments tosenior management thereof, or other benefits conferred upon, are on terms at least as favorable as might reasonably have been obtained at such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiarytime from an unaffiliated party.
Appears in 1 contract
Sources: Indenture (Alliance Imaging of Central Georgia Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution payment to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement agreement, understanding, loan, advance or understanding guarantee with, or for the benefit of, any Affiliate of the Company or any Affiliate of any (each of the Company's Subsidiaries foregoing, an “Affiliate Transaction”) involving aggregate payments or any holder consideration in excess of 10% or more of the Common Equity of $2.5 million, unless
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company (including any Affiliates of such holders), or the relevant Restricted Subsidiary than those that would have been obtained in a single comparable transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted SubsidiarySubsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 million, as a Board Resolution adopted by the case may bemajority of the members of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing provisions shall not apply to the following:
(1) transactions between or among the Company or any of the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 1010 of this Indenture and the definition of Permitted Investments (other than Permitted Investments under clauses (c) and (n) of the definition of Permitted Investments);
(3) transactions pursuant to compensatory, in a comparable transaction made on an arm's length basis benefit and incentive plans and agreements with Persons who are not such a holderofficers, an Affiliate of such a holder directors, managers or an Affiliate employees of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any its Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of Subsidiaries approved by a majority of the Board of Directors of the Company in good faith;
(4) the payment of reasonable and (y) either obtained the approval of a majority customary fees and reimbursements paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Company's disinterested directors , any of its direct or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to indirect parent companies or any Restricted Subsidiary;
(5) transactions in which the Company or such any Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered delivers to the Trustee a letter from an opinion of a qualified independent financial advisor to the effect Independent Financial Advisor stating that such Affiliate Transaction transaction is fair to the Company or such Restricted SubsidiarySubsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(6) payments or loans (or cancellations of loans) to employees or consultants of the Company, any of its direct or indirect parent companies or any Restricted Subsidiary and employment agreements, employee benefit plans, stock option plans and other compensatory or severance arrangements with such employees or consultants that are, in each case, approved by the Company in good faith;
(7) any agreement, instrument or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect as compared to the applicable agreement as in effect on the Issue Date as reasonably determined by the Company in good faith, as evidenced by an Officer’s Certificate);
(8) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any director, manager, officer, employee or consultant of the Company or any direct or indirect parent company thereof;
(10) any transaction in which the only consideration paid by the Company or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Company;
(11) any merger, consolidation or reorganization of the Company with an Affiliate of the Company solely for the purpose of reincorporating the Company in a new jurisdiction; and
(12) transactions between the Company or any Restricted Subsidiary and any person that is an Affiliate of the Company or any Restricted Subsidiary solely because a director of such Person is also a director of the Company or any direct or indirect parent of the Company; provided that such director abstains from voting as a director of the Company or any direct or indirect parent, as the case may be, from a financial point of viewon any matter involving such other Person.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Kaiser Aluminum Corp)
Limitations on Transactions with Affiliates. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 the following covenant will no longer be in effect),
(a) , the Company will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for --------------------- any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 50 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding (a) and (b) above , an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of employees of the Company or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Eleventh Supplemental Indenture (Horton D R Inc /De/)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each, an “Affiliate Transaction”), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are fair and reasonable to the Company or such Restricted Subsidiary and are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate Transactions (and each series of any related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property in excess of $5.0 million shall be approved by the Board of Directors of the Company's Subsidiaries , such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any holder of 10% or more of the Common Equity Restricted Subsidiary of the Company enters into an Affiliate Transaction (including any Affiliates of such holders), in or a single transaction or series of related transactions (eachAffiliate Transactions related to a common plan) that involves an aggregate payment or other property in excess of $10.0 million, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in shall, prior to the consummation thereof, obtain a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair related transactions to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and shall provide such opinion to the Trustee together with an Officers’ Certificate setting forth in reasonable detail the facts and circumstances of such transaction or series of related transactions.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to:
(i) any contract, agreement or understanding with, or for the benefit reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary of the Company as determined in their capacities as such) that has been approved good faith by the Company’s Board of Directors of the Company, or senior management;
(ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries (providedSubsidiaries, -------- however, no provided such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted transactions are not otherwise prohibited by this Indenture);
(iii) and any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments permitted by Section 4.10; and
(v) any transaction between one or more Restricted Subsidiaries transactions permitted by, and one or more Unrestricted Subsidiaries where all complying with, the provisions of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiarySection 5.01.
Appears in 1 contract
Sources: Indenture (Standard Commercial Corp)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the The Company will not, and will not cause permit any of the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any its Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any other than (x) Affiliate Transaction Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the terms of Company or such Restricted Subsidiary. All Affiliate Transactions (and each se- ries ▇▇ related Affiliate Transactions which are at least as favorable as similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be approved by the terms which could be obtained by Board of Directors of the Company or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the foregoing provisions. If the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 10.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractemployment, agreement or understanding with, or for consulting and compensation arrangements and agreements of the benefit Company as in effect on the Issue Date; (ii) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company or its Subsidiaries generally (any Restricted Subsidiary as determined in their capacities as such) that has been approved good faith by the Company's Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, senior management; (iii) any Restricted Payment otherwise permitted under Section 3.04, consulting fees paid by the Company consistent with past practice; (iv) any transaction transactions exclusively between or among the Company and one or more any of the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary v) transactions pursuant to the extent the applicable amount constitutes a Existing Agreements; and (vi) Restricted Payment Payments permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Vs Holdings Inc)
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a) the Company The Guarantor will not, and will not cause permit any of the Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company Guarantor or any such Restricted Subsidiary. All Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company Transactions (including any Affiliates of such holders), in a single transaction or and each series of related transactions (each, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of Transactions which are at least as favorable as the terms which could similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1.0 million shall be obtained approved by the Company Board of Directors of the Guarantor or such Restricted Subsidiary, as the case may be, in such approval to be evidenced by a comparable Board Resolution stating that such Board of Directors has determined that such transaction made on an arm's length basis complies with Persons who are not such a holder, an Affiliate of such a holder the foregoing provisions. If the Guarantor or an Affiliate of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter enters into an Affiliate Transaction unless (ior series of related Affiliate Transactions related to a common plan) with respect to any such Affiliate Transaction involving or having a that involves an aggregate fair market value of more than $10 5.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company Guarantor or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 millionshall, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered prior to the Trustee an consummation thereof, obtain a favorable opinion of a qualified independent financial advisor as to the effect that fairness of such Affiliate Transaction is fair transaction or series of related transactions to the Company Guarantor or such the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(cb) Notwithstanding The restrictions set forth in clause (a) and (b) above , an Affiliate Transaction will shall not include apply to (i) any contractemployment, agreement or understanding with, or for consulting and compensation arrangements and agreements of the benefit Guarantor as in effect on the Issue Date; (ii) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or plan for the benefit of employees consultants of the Company Guarantor or its Subsidiaries generally (any Restricted Subsidiary as determined in their capacities as such) that has been approved good faith by the Guarantor's Board of Directors of the Company, (ii) Capital Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the Company, senior management; (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction transactions exclusively between or among the Company Guarantor and one or more any of the Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries Subsidiaries; (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a iv) Restricted Payment Payments permitted by this Indenture)) ; and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryDomestication Event.
Appears in 1 contract
Limitations on Transactions with Affiliates. Until the Notes are rated Investment Grade by both Rating Agencies (after which time this Section 3.05 will no longer be in effect),
(a1) the The Company will shall not, and will shall not cause permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Restricted Subsidiary totransaction or series of related transactions (including, make any loanwithout limitation, advancethe purchase, guarantee sale, lease or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose exchange of any property or assets to, or for the benefit of, or purchase or lease rendering of any property or assets from, or enter into or amend any contract, agreement or understanding service) with, or for the benefit of, any of its Affiliates (each an "Affiliate --------- Transaction"), other than (x) Affiliate Transactions permitted under paragraph ----------- (2) below and (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate Transactions (and each series of any related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $2.0 million shall be approved by the Company's Subsidiaries or any holder Board of 10% or more of the Common Equity Directors of the Company or such Re- stricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (including any Affiliates of such holders), in or a single transaction or series of related transactions (eachAffiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $10.0 million, an "Affiliate Transaction"), --------------------- except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in shall, prior to the consummation thereof, obtain a comparable transaction made on an arm's length basis with Persons who are not such a holder, an Affiliate favorable opinion as to the fairness of such a holder transaction or an Affiliate series of the Company or any of the Company's Subsidiaries.
(b) In addition, the Company will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless (i) with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair related transactions to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $50.0 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company or such relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(2) The restrictions set forth in clause (1) shall not apply to:
(a) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors;
(b) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are -------- not otherwise prohibited by this Indenture;
(c) Notwithstanding any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (aincluding pursuant to any amendment thereto) and in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;
(bd) above Restricted Payments permitted by this Indenture;
(e) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Affiliate Transaction will not include Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of the first sentence of paragraph (i1) any contract, agreement or understanding with, or for above;
(f) the benefit existence of, or plan for the benefit performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company -------- ------- or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Securities in any material respect;
(g) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by Board of Directors of the Company in good faith and loans to employees of the Company or and its Subsidiaries generally (in their capacities as such) that has been which are approved by the Board of Directors of the CompanyCompany in good faith;
(h) the payment of all fees and expenses related to the Transactions;
(i) transactions with customers, (ii) Capital Stock issuances clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to directorsthe Company or its Restricted Subsidiaries, officers and employees in the reasonable determination of the Board of Directors of the Company or its Subsidiaries 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; and
(j) fees payable to Apollo pursuant to plans approved by the stockholders of Management Agreement and the Company, (iii) any Restricted Payment otherwise permitted under Section 3.04, (iv) any transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, -------- however, no such transaction shall involve any other Affiliate of the ------- Company (other than an Unrestricted Subsidiary to the extent the applicable amount constitutes a Restricted Payment permitted by this Indenture)) and (v) any transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted SubsidiaryShareholders' Agreement.
Appears in 1 contract
Sources: Indenture (Pacer Express Inc)