Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an “Affiliate Transaction”), unless: (1) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and (2) the Company delivers to the Trustee: (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a): (1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; (2) transactions (including a merger) 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 Equity Interest in such Person; (4) payment of reasonable directors’ fees; (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights; (6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments; (7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries; (8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger; (9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company); (10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger; (11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and (12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 2 contracts
Sources: First Supplemental Indenture (DRS Technologies Inc), First Supplemental Indenture (DRS Technologies Inc)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 2.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company (if any); andor
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company and/or its Restricted SubsidiariesSubsidiaries or any Person that will become a Restricted Subsidiary as part of such transaction;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ feesfees to Persons who are not otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) Permitted Investments or Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentshereof;
(7) if such Affiliate Transaction is with loans (or cancellations of loans) or advances to employees in the ordinary course of business not to exceed $2.0 million in the aggregate at any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariesone time outstanding;
(8) payment of fees pursuant to the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI MergerManagement Agreement;
(9) Permitted Parent Payments;
(10) transactions effected between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment and between a Receivables Subsidiary and the Company or a Restricted Subsidiary;
(11) the payments of all fees and expenses related to the Transaction described in the Company’s Offering Memorandum, dated August 3, 2004, under the captions “The Transactions” and “Certain Relationships and Related Transactions”;
(12) 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 that are on terms no less favorable than those that would have been obtained in a comparable transaction with an unrelated party or on terms that are approved by the Company’s Board of Directors, including a majority of the disinterested directors; and
(13) transactions pursuant to agreements any contract or agreement in effect on the date of this Indenture and any amendmentIndenture, modificationin each case as amended, modified or replacement replaced from time to such agreement (time so long as the amendmentamended, modification modified or replacement is not materially more disadvantageous to the Holders of the Notesnew agreements, taken as a whole, as determined by are no less favorable to the Board of Directors of the Company);
(10) payments made Company and its Restricted Subsidiaries than those in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence effect on the date hereof and consistent with past practiceof this Indenture.
Appears in 2 contracts
Sources: Indenture (Innophos, Inc.), Indenture (Innophos Investment Holdings, Inc.)
Transactions with Affiliates. (a) The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Parent (each of the foregoing, an “Affiliate Transaction”), ) involving aggregate payments or consideration in excess of $25 million unless:
: (1i) such Affiliate Transaction is on terms that are not materially less favorable to the Company Parent or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary Person with an unrelated PersonPerson on an arm’s-length basis; and
(2ii) any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $50 million is approved by a majority of the Company board of directors (or equivalent body) of Parent; and (iii) Parent delivers to the Trustee:
(A) Administrative Agent 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 of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 75 million, an opinion as to the fairness to the Company Parent or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items foregoing provisions will not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 4.11(a):following:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement transactions between or among Parent or any similar arrangement entered into by the Company Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary as a result of, or in connection with, such transaction, so long as neither such Person nor the selling entity was an Affiliate of its Parent or any Restricted Subsidiaries in the ordinary course of businessSubsidiary prior to such transaction);
(2) transactions Restricted Payments permitted to be made pursuant to Section 7.05 and Investments permitted to be made pursuant to Section 7.06;
(including a merger3) between the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements and agreements provided on behalf of, or among the Company and/or entered into with, officers, directors, employees or consultants of Parent or any of its Restricted Subsidiaries;
(34) transactions with a Person any agreement or arrangement (other than an Unrestricted Subsidiary i) as in effect as of the CompanyClosing Date or (ii) that anticipated to be entered into in connection with the Separation and/or the Initial Public Offering, in each case, as set forth on Schedule 7.07, or any amendment thereto (so long as any such amendment is an Affiliate of not disadvantageous in any material respect to the Company solely because Lenders when taken as a whole as compared to the Company ownsapplicable agreement, directly or through a Restricted Subsidiaryas determined in good faith by Parent) and any transaction contemplated thereby, an Equity Interest as determined in such Person;
(4) payment of reasonable directors’ feesgood faith by Parent;
(5) any the Transactions and the payment of all fees and expenses related to the Transactions;
(6) transactions with customers (including leases and other arrangements for the use of advertising space), clients, suppliers, or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement which are fair to Parent and its Restricted Subsidiaries, in the reasonable determination of the board of directors (or equivalent body) of Parent or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(7) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted SubsidiariesParent;
(8) the existence sales of accounts receivable, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into participations therein, in connection with the ESSI Mergerany Receivables Facility;
(9) transactions effected pursuant payments or loans (or cancellation of loans) to agreements employees, directors or consultants of Parent or any of its Restricted Subsidiaries and employment agreements, benefit plans, equity plans, stock option and stock ownership plans and other similar arrangements with such employees, directors or consultants which, in effect on the date of this Indenture and any amendmenteach case, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined are approved by the Board of Directors of the Company)Parent in good faith;
(10) payments made transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in fulfillment the ordinary course of the Company’s obligations arising in connection with the ESSI Mergerbusiness;
(11) reasonable transactions with respect to which Parent or any Restricted Subsidiary, as the case may be, has obtained a letter from an Independent Financial Advisor stating that such transaction is fair to Parent or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 7.07(a)(i);
(12) the issuances of securities or other payments, loans (or cancellation of loans) awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, benefit plans, equity plans, stock option and documented attorney’s fees and expenses paid stock ownership plans or similar employee benefit plans approved by the Board of directors (or equivalent body) of Parent in good faith;
(13) any contribution to the capital of Parent (other than in consideration for services renderedof Disqualified Stock); and
(1214) a transaction or series the provision to Unrestricted Subsidiaries of transactions involving payments cash management, accounting and other overhead services in the ordinary course of business undertaken in good faith and not for the purpose of circumventing any covenant set forth in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicethis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company involving aggregate payments of consideration in excess of $25.0 million (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) in the Company delivers to the Trustee:
(A) with respect to event of any Affiliate Transaction or series of related Affiliate Transactions involving the transfer by the Company or any of its Restricted Subsidiaries of assets having an aggregate consideration Fair Market Value in excess of (a) $15.0 50.0 million, the terms of such Affiliate Transaction have been approved by a resolution majority of the members of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) of the Company and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors of the Company and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 75.0 million, an opinion as to the fairness to the Company or such the relevant Restricted Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any agreement, arrangement or transaction with a current or former officer, director, employee or consultant of the Company or any of its Restricted Subsidiaries relating to compensation, perquisites or indemnities, including without limitation any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting consultant agreement or any similar arrangement arrangement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) 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 Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(65) Restricted Payments that do not violate the provisions of Section 4.07 hereof hereof;
(6) 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 Subsidiary in connection with a Permitted InvestmentsSecuritization Program and transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(7) if such Affiliate Transaction is with any Person solely loans or advances to, or Guarantees of Indebtedness of, employees, officers or directors made in its capacity as a holder the ordinary course of debt or capital stock business of the Company or any Restricted Subsidiary of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder Company in an aggregate amount not in excess of debt $15.0 million with respect to all loans, advances or capital stock Guarantees made since the Issue Date;
(8) transaction or series of related transactions in which the Company or any Restricted Subsidiary delivered to the Trustee a letter issued by an accounting, appraisal or investment banking firm of national standing as to the Company’s fairness to the Company or such Restricted Subsidiaries;
(8) Subsidiary of such transaction or series of related transactions from a financial point of view or that such transaction or series of related transactions are not materially less favorable to the existence of Company or the performance relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or any of the Company’s such Restricted Subsidiaries Subsidiary with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Mergeran unrelated Person;
(9) transactions effected pursuant to agreements with customers, clients, suppliers or purchasers or sellers of goods or services, in effect on each case in the date ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture and any amendment, modification, or replacement to such agreement (so long as Indenture; provided that in the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors reasonable determination of the Company), such transactions are on terms that are no less favorable to the Company or the 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;
(10) payments made in fulfillment by the Company and its Restricted Subsidiaries pursuant to tax sharing agreements among the Company and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company’s obligations arising in connection with the ESSI Merger;Company and its Restricted Subsidiaries; and
(11) reasonable and documented attorney’s fees and expenses paid any agreement as in consideration for services rendered; and
effect as of the Issue Date, or any amendment thereto (12) so long as any such amendment is not disadvantageous to the Holders of Notes when taken as a transaction or series of transactions involving payments not whole as compared to the applicable agreement as in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence effect on the date hereof and consistent with past practiceIssue Date).
Appears in 2 contracts
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 2.5 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any employment or consulting agreement, employee benefit plan, stock option, stock repurchase, severance, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) 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 Equity Interest in in, or controls, such Person;
(4) payment of reasonable and customary fees and reimbursements of expenses to, and the provision of indemnities (pursuant to indemnity arrangements or otherwise) to, officers, directors’ fees, 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 Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments4.07;
(7) if such Affiliate Transaction is with payments of fees and expense reimbursements to the Sponsor pursuant to the Management Agreement as in effect on the date of this Indenture and any amendments thereto or replacements thereof that are no less favorable to the Company;
(8) loans or advances to employees in the ordinary course of business not to exceed $1.0 million in the aggregate at any one time outstanding;
(9) any agreement between any Person solely in its capacity as a holder and an Affiliate of debt or capital stock of such Person existing at the Company or any of the Company’s Restricted Subsidiaries where time such Person is treated no more favorably than any other holder of debt acquired by or capital stock of merged into the Company or any of the Company’s Restricted Subsidiaries;; provided, that such agreement was not entered into contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of the Notes when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger); and
(8) 10) transactions pursuant to any contract or agreement described in the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations Offering Memorandum under the terms of any stockholders or similar agreement entered into in connection with caption “Certain Relationships and Related Party Transactions” (other than the ESSI Merger;
(9Management Agreement) transactions effected pursuant to agreements and in effect on the date of this Indenture and any amendmentas the same may be amended, modification, modified or replacement replaced from time to such agreement (time so long as the any such amendment, modification or replacement is not materially not, in the reasonable good faith judgment of the Board of Directors or senior management of the Company, more disadvantageous to the Holders of Company or its Restricted Subsidiaries than the Notes, taken contract or agreement as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence effect on the date hereof and consistent with past practiceof this Indenture.
Appears in 2 contracts
Sources: Indenture (CPM Holdings, Inc.), Indenture (CPM Holdings, Inc.)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1a) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2b) the Company delivers to the Trustee:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution of the Company’s Board of Directors set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Company’s Board of Directors, which approval, if the Company’s Board of Directors includes disinterested members at such time, shall include the approval of at least one disinterested member; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 20.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):the prior paragraph:
(1a) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar other compensation arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and the payment of compensation and the reimbursement of expenses pursuant thereto;
(2b) transactions (including a merger) between or among the Company and/or any of its Restricted Subsidiaries;
(3c) 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, owns an Equity Interest in in, or controls, such Person;
(4d) payment of reasonable fees and expenses to directors’ fees;
(5e) indemnification of officers and directors of the Company or any issuance Restricted Subsidiary pursuant to reasonable and customary indemnification provisions;
(f) sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6g) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof 4.07, and Permitted Investments;
(7h) if such Affiliate Transaction is with transactions under any Person solely in its capacity as a holder of debt contract or capital stock agreement of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements Subsidiary in effect on the date of this Indenture and any amendmentIndenture, modificationin each case, as the same may be amended, modified or replacement replaced from time to such agreement (time so long as the any such amendment, modification or replacement is not materially more disadvantageous less favorable to the Holders Company and its Restricted Subsidiaries than the contract or agreement as in effect on the date of this Indenture;
(i) loans or advances to employees who are Affiliates in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding;
(j) the existence of, or the performance by Parent, the Company or any of the NotesRestricted Subsidiaries of obligations (including obligations resulting from Parent causing the Company or any of its Restricted Subsidiaries to take certain actions as required thereby) under the terms of, the Investor Rights Agreement as in effect on date of this Indenture and as subsequently amended and any related agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by Parent, the Company or any of the Restricted Subsidiaries of obligations (including obligations resulting from Parent causing the Company or any of its Restricted Subsidiaries to take certain actions as required thereby) under any future amendment to any such existing agreement or under any similar agreement entered into after the date of this Indenture shall only be permitted by this clause (j) to the extent that the terms of any such amendment or related agreement are not otherwise disadvantageous in any material respect to the Holders, when taken as a whole;
(k) services provided to any Unrestricted Subsidiary in the ordinary course of business, as determined by which the Company’s Board of Directors has determined, pursuant to a resolution thereof, are provided on terms at least as favorable to the Company and its Restricted Subsidiaries as those that would have been obtained in a comparable transaction with an unrelated Person;
(l) any transactions permitted under Section 5.01;
(m) tax sharing agreements, or payments pursuant thereto, between the Company 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 to be used by such Person to pay taxes, and which payments by the Company and the Restricted Subsidiaries are not in excess of the Permitted Tax Distributions;
(n) any merger of the Company and any direct or indirect parent company of the Company); provided, however, that such merger is otherwise in compliance with the terms of this Indenture, including Section 5.01;
(10o) payments made in fulfillment L.D.L. Enterprises, Inc.’s use of advertising time on radio and television stations of the Company’s obligations arising Company and its Subsidiaries as described in connection with “Certain Relationships and Related Transactions” in the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedOffering Circular; and
(12p) a transaction or series the incurrence by the Company of transactions involving Indebtedness under the LBI Media Intercompany Note and payments not in excess of $5.0 million made pursuant to contractsprincipal, agreements or interest and other arrangements in existence on the date hereof and consistent with past practiceamounts owing thereunder.
Appears in 2 contracts
Sources: Indenture (Lbi Media Holdings Inc), Indenture (Lbi Media Holdings Inc)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors set forth in of the Company accompanied by an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any payment of reasonable fees, compensation, expenses, bonus, separation or severance to employees, officers or directors (including indemnification to the fullest extent permitted by applicable law, directors’ and officers’ insurance and similar arrangements, employment agreementcontracts, employee benefit plan, officer non-competition and director indemnification agreement, consulting agreement confidentiality agreements and similar instruments or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries payments) in the ordinary course of businessbusiness which have been approved by a majority of the disinterested members of the Board of Directors of the Company;
(2) maintenance in the ordinary course of business of reasonable benefit programs or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, SERPs, split dollar life insurance plans, deferred compensation plans, retirement or savings plans, stock option plans, stock ownership or purchase plans or any other similar arrangements or plans;
(3) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(34) 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 in, or controls, such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or any contribution of capital to the Company and the granting or performance of registration rightsrights in connection therewith;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentshereof;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock Permitted Investments described under clauses (8) and (13) of the Company or any definition of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariesterm “Permitted Investments”;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected transaction pursuant to agreements any contract or agreement as in effect on the date of this Indenture and any amendmentIssue Date as the same may be amended, modification, modified or replacement replaced from time to such agreement (time so long as the any such amendment, modification or replacement is not materially more disadvantageous to the Holders of the NotesCompany or its Restricted Subsidiaries, taken as a whole, than the contract or agreement as determined in effect on the Issue Date;
(9) 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 of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Board of Directors of the Company or Senior Management, such transactions are on terms that are no less favorable to the Company or the 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;
(10) transactions with an Affiliate in its capacity as a purchaser or holder of Indebtedness or other securities of the Company or any Restricted Subsidiary of the Company in which such Affiliate is treated no more favorably than the other purchasers or holders of Indebtedness or other securities of the Company or such Restricted Subsidiary (except as otherwise permitted under this Section 4.11);
(11) investments by Affiliates of the Company in securities of the Company or any of its Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms;
(12) any transaction pursuant to any employment agreement entered into between the Company and any employee of the Company on or after the Original Issue Date or pursuant to the Company’s 2017 Management Incentive Plan dated as of the Original Issue Date (as may be amended with the approval of a majority of the disinterested members of the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(1213) transactions with an Affiliate in its capacity as a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractspurchaser, agreements holder, participant, sub participant or other arrangements in existence on direct or indirect owner of Indebtedness of the date hereof and consistent with past practiceCompany or any Restricted Subsidiary of the Company incurred under the Senior Credit Facility or the Existing Indenture.
Appears in 2 contracts
Sources: Indenture (A. M. Castle & Co.), Indenture (Total Plastics, Inc.)
Transactions with Affiliates. (a) The Company will shall ---------------------------- not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
(1i) such Affiliate Transaction is on terms that that, taken as a whole, are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company delivers to the Trustee:
Trustee (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions entered into after the first Issue Date involving aggregate consideration in excess of $15.0 3.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate Resolution certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accountinginvestment banking, appraisal or investment banking accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(aTransactions):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other 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 such Personcontemplated thereby;
(4) payment of reasonable directors’ fees;
any payments to Investcorp and its Affiliates (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to whether or not such Persons are Affiliates of the Company and the granting Company) (A) for any financial advisory, financing, underwriting or performance placement services or in respect of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into investment banking activities, including in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentacquisitions or divestitures, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined which payments are approved by the Board of Directors of the Company)Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(105) payments made any agreement in fulfillment effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreement) or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedforegoing; and
(126) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicean unrelated Person.
Appears in 2 contracts
Sources: Indenture (Sailors Inc), Indenture (Harborside Healthcare Corp)
Transactions with Affiliates. (aA) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company or any of its Subsidiaries (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $50,000, unless:
(1i) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable arms-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate of the Company or any of its Subsidiaries; and
(2ii) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 million100,000, a resolution of the Board of Directors set forth in accompanied by an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 3.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and;
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):3.13:
(1i) the Notes and the Guarantees;
(ii) any consulting or employment agreement, employee benefit agreement or compensation plan, stock option or stock ownership plan or reasonable and customary officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness for the benefit of directors, officers, employees and consultants of the Company or its Subsidiaries and payments and transactions pursuant thereto;
(2iii) transactions (including a merger) 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 Equity Interest in such Person;
(4iv) payment of reasonable fees or other reasonable compensation to, provision of customary benefits or indemnification agreements to and reimbursement of expenses of directors’ fees, officer and employees of the Company or any of its Subsidiaries;
(5v) any issuance transaction in which the only consideration paid by the Company or any Subsidiary consists of Equity Interests Capital Stock (other than Disqualified Stock) of the Company or any contribution of capital to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof 3.11 of this Indenture and Permitted InvestmentsIndebtedness that does not violate the provisions of Section 3.09 of this Indenture;
(7vii) transactions pursuant to agreements or arrangements as in effect on the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as such agreement or arrangement, as so amended, modified or supplemented or replaced, is not materially more disadvantageous, taken as a whole, than such agreement or arrangement as in effect on the Issue Date, as determined in good faith by the Company);
(viii) purchases or sales of goods or services with customers, suppliers, sales agents or sellers of goods and services in the ordinary course of business on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained at the time in a comparable transaction by the Company or such Subsidiary with a Person that is not an Affiliate of the Company;
(ix) if such Affiliate Transaction is with any Person solely an Affiliate in its capacity as a holder of debt Indebtedness of the Company or capital stock any Subsidiary, a transaction in which such Affiliate is treated no more favorably than the other non-Affiliated holders of Indebtedness of the Company or such Subsidiary;
(x) transactions in the ordinary course of business between the Company or a Subsidiary with any joint venture; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Subsidiaries and Persons that are not Affiliates of the Company (other than by virtue of such joint venture arrangement);
(xi) any Investment of the Company or any of its Subsidiaries existing on the Company’s Restricted Subsidiaries where Issue Date, and any extension, modification or renewal of such Person is treated no more favorably existing Investments, to the extent not involving any additional Investment other than as the result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investments as in effect on the Issue Date;
(xii) the formation and maintenance of any other holder consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of debt business or capital stock transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Company or any of their Subsidiaries and not for the Company’s Restricted Subsidiariespurpose of circumventing any provision of this Indenture;
(8) xiii) to the existence extent permitted under this Indenture, 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 performance by Company in a new jurisdiction;
(xiv) entering into one or more agreements that provide registration or information rights to the security holders of the Company or any Subsidiary or any direct or indirect parent of the Company or amending such agreement with security holders of the Company or any Subsidiary or any direct or any indirect parent of the Company’s Restricted Subsidiaries with ;
(xv) transactions contemplated by, or in connection with, any of its obligations under the terms of any stockholders or similar customary transition services agreement entered into in connection with the ESSI Mergerany Disposition which is permitted hereunder;
(9xvi) transactions effected pursuant customary fees, indemnities and reimbursements may be paid to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders non-officer directors of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable Company and documented attorney’s fees and expenses paid in consideration for services renderedits Subsidiaries; and
(12xvii) the issuance, sale or transfer of Capital Stock (other than Disqualified Stock) of the Company, and any contribution to the capital of the Company;
(xviii) advances to employees of the Company or any of its Subsidiaries made in the ordinary course of business, in a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and manner that is consistent with past practice.
(C) The Section 3.13 will cease to apply from and after the date, if at all, on which the Company exercises its Covenant Defeasance right pursuant to Section 9.04.
Appears in 2 contracts
Sources: Indenture (Biora Therapeutics, Inc.), Indenture (Biora Therapeutics, Inc.)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $25.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the its relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated PersonPerson on an arm’s-length basis; and
(2) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 50.0 million, a resolution adopted by the majority of the Board board of Directors directors of the Company (or a resolution of the Audit Committee of the board of directors of the Company approved by a majority of the members of the Audit Committee) approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (1) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingabove.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement transactions between or among the Company or any similar arrangement entered into of its Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 4.07 herein and the definition of “Permitted Investment”;
(3) the payment of reasonable and customary compensation and fees paid to, and indemnities provided for the benefit of, former, current or future officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(4) 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 either stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that such 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;
(5) 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 by 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 as compared to the applicable agreement as in effect on the Issue Date as determined in good faith by the Company);
(6) the existence of, or the performance by the Company or any of its Restricted Subsidiaries in of its obligations under the ordinary course of business;
(2) transactions terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a merger) between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary party as of the Company) Issue Date and any similar agreements which it may enter into thereafter; provided, however, that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of of, or the performance by the Company or any of the Company’s its Restricted Subsidiaries with any of its 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 (6) to the extent that the terms of any stockholders such amendment or similar new agreement entered into are not otherwise disadvantageous in connection any material respect in the good faith judgment of the board of directors or management of the Company to the Holders when taken as a whole;
(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 ESSI Mergerterms of this Indenture which are fair to the Company and 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 might reasonably have been obtained at such time from an unaffiliated party;
(8) the sale and issuance of Equity Interests of the Company to any Permitted Holder or to any director, officer, employee or consultant of the Company or its direct or indirect parent entities or its Restricted Subsidiaries or any Affiliates thereof otherwise in compliance with the terms of this Indenture;
(9) transactions effected sales of accounts receivable, or participations therein, in connection with any Receivables Facility or Factoring Program;
(10) payments by the Company or any of its Restricted Subsidiaries to any of the investors 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 of the Company in good faith;
(11) any issuances of securities or other payments, awards, grants in cash, securities or otherwise or loans (or cancellation of loans) to employees or consultants of the Company, any of its direct or indirect parent entities or any of its Restricted Subsidiaries pursuant to, or for the funding of, employment arrangements or agreements, stock option plans, stock ownership plans and other similar arrangements with such employees or consultants which, in each case, are approved by the Company in good faith;
(12) the pledge of Equity Interests of any Unrestricted Subsidiary to lenders to support the Indebtedness of such Unrestricted Subsidiary owed to such lenders;
(13) any transaction with a joint venture which would constitute an Affiliate Transaction solely because the Company or its Restricted Subsidiary owns an equity interest or otherwise controls such joint venture or similar entity; and
(14) the payment of management, consulting, monitory and advisory fees and related expenses pursuant to agreements the Advisory Agreement pursuant to the terms of the Advisory Agreement as in effect on the date of this Indenture and Issue Date or pursuant to any amendment, modification, amendment thereto or a new or replacement to such agreement (so long as the amendment, modification any such amendment or new or replacement agreement is not materially more disadvantageous to the Holders of the Notes, when taken as a whole, whole as determined by compared to the Board of Directors of the Company);
(10) payments made Advisory Agreement in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence effect on the date hereof and consistent with past practiceIssue Date).
Appears in 2 contracts
Sources: Indenture (Element Solutions Inc), Indenture (Platform Specialty Products Corp)
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Issuer (each each, an “Affiliate Transaction”), involving aggregate consideration in excess of $20.0 million, unless:
(1) such the Affiliate Transaction is on terms that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 100 million, (x) a resolution of the Board of Directors set forth in an Officers’ Certificate of the Issuer certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members members, if any, of the Board of Directors; and
Directors of the Issuer or (By) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company Issuer or such Restricted Subsidiary of such Affiliate Transaction from a 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 4.11(a):4.09(a) hereof:
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Issuer or any of its Restricted Subsidiaries in the ordinary course of businessbusiness or consistent with past practice and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyIssuer) that is an Affiliate of the Company Issuer solely because the Company Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4) payment of reasonable fees to, and indemnity provided on behalf of, officers, directors’ fees, employees or consultants of the Issuer or any of its Restricted Subsidiaries;
(5) any issuance of Equity Interests (securities, or other than Disqualified Stock) of payments, awards or grants in cash, securities or otherwise pursuant to, or the Company to Affiliates of the Company funding of, employment arrangements, equity incentive awards, equity incentive plans and the granting or and performance of registration rights, approved by or pursuant to authority delegated by the Board of Directors of the Issuer or its Restricted Subsidiaries;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted InvestmentsInvestments permitted under this Indenture;
(7) loans or advances (or cancellation of loans or advances) to employees or consultants in the ordinary course of business or consistent with past practice;
(8) any transaction effected as part of a Qualified Receivables Financing;
(9) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any acquisition agreements or members’ or stockholders agreement or partnership agreement or limited liability company agreement or related documents (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the date of this Indenture and any amendment thereto or similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the date of this Indenture 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 such new agreement are not otherwise more disadvantageous to the Holders of the Notes taken as a whole than the original agreement as in effect on the date of this Indenture, as determined in good faith by the Issuer;
(10) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, or lessors or lessees of property, 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, in the aggregate (taking into account all the costs and benefits associated with such transactions), materially no less favorable to the Issuer or its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person as determined in good faith by the Issuer;
(11) (x) guarantees of performance by the Issuer and its Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (y) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(12) if such Affiliate Transaction is with any a Person solely in its capacity as a holder of debt Indebtedness or capital stock Capital Stock of the Company Issuer or any of the Company’s Restricted Subsidiaries Subsidiary where such Person is treated no more favorably than any other holder the holders of debt Indebtedness or capital stock Capital Stock of the Company Issuer or any of the Company’s Restricted SubsidiariesSubsidiary;
(8) the existence of 13) existing Indebtedness and any other obligations or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture Issue Date and any amendment, modification, modification or replacement to of such agreement (so long as the amendment, modification such amendment or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(1014) payments to the Equity Investors made in fulfillment of the Company’s obligations arising for any financial advisory, financing or other investment banking activities, including without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the ESSI MergerBoard of Directors;
(1115) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedtransactions pursuant to any Permitted Gas Properties Transactions;
(16) transactions otherwise permitted under this Indenture; and
(1217) any transaction in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a transaction financial point of view issued by an accounting, appraisal or series investment banking firm of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicenational standing.
Appears in 2 contracts
Sources: Indenture (Alpha Natural Resources, Inc.), Indenture (Alpha Natural Resources, Inc.)
Transactions with Affiliates. Except for the payment of fees and the reimbursement of expenses in connection with the Control Stockholder's acquisition of Common Stock on the date hereof, until the consummation of the Company's Initial Public Offering (a) The as hereinafter defined), the Company will not, and its subsidiaries will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any transaction or make or amend series of similar transactions with any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate affiliates of the Company unless: (each an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction is on terms that are not materially less favorable to in the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series case of related Affiliate Transactions involving aggregate consideration transactions in excess of $15.0 10 million but less than $50 million, the Company obtains a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been of the Company approved by a majority of Disinterested Directors certifying as to the disinterested members fairness of the Board transaction; or (ii) in the case of Directors; and
transactions (BA) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as 50 million or (B) pursuant to the fairness which fees are paid to the Company or such Subsidiary affiliate (other than sales of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer products and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries services in the ordinary course of business;
), the Company obtains, in addition to the approval of a majority of Disinterested Directors, a fairness opinion from a nationally recognized investment banking firm selected by the Disinterested Directors. In addition to the foregoing, (2i) if all of the transactions (including a merger) between or entered into after the date hereof among the Company and/or or its Restricted Subsidiaries;
subsidiaries, on the one hand, and with First Reserve and its affiliates (3) transactions with a Person the "FRC Affiliate Group"), on the other hand, (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 such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance acquisition by the Company or of Entech Industries, Inc., a Delaware corporation, and LVF Holding Corporation, a Delaware corporation, both of which are controlled by First Reserve) in the aggregate exceed $50 million, then the Company will not enter into any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection subsequent transactions with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on FRC Affiliate Group unless the date Company obtains a resolution of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment Company approved by a majority of Disinterested Directors certifying as to the fairness of the Company’s obligations arising in connection with transaction, and (ii) if all of the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on entered into after the date hereof among the Company or its subsidiaries, on the one hand, and consistent with past practiceOdyssey and its affiliates (the "Odyssey Affiliate Group"), on the other hand, in the aggregate exceed $50 million, then the Company will not enter into any subsequent transactions with the Odyssey Affiliate Group unless the Company obtains a resolution of the Board of Directors of the Company approved by a majority of Disinterested Directors (which majority shall include the affirmative vote of at least one director appointed by FRC) certifying as to the fairness of the transaction. Without limiting the foregoing, term "Disinterested Directors" shall mean (a) with respect to any transaction with the FRC Affiliate Group, the directors other than those nominated by FRC and (b) with respect to any transaction with the Odyssey Affiliate Group, the directors other than those nominated by Odyssey. For purposes of this Section 1.6, the dollar amount of any transaction shall be determined by reference, in the case of any transaction to be performed by one or the other party entirely through the payment of cash, to the amount of cash so required or, in the case of any other transaction, to the fair value of any property or services conveyed or rendered by one or the other party, as determined by a majority of the Disinterested Directors, together with the amount of any cash required to be paid by such party. For purposes of this Agreement, the Company's Initial Public Offering shall mean the first firmly underwritten public offering by the Company of shares of Common Stock representing at least 5% of the outstanding Common Stock (on a fully diluted basis after giving effect to such offering) in which the Company receives proceeds, in the aggregate, of not less than $100,000,000 before deduction of underwriters' commissions and expenses.
Appears in 2 contracts
Sources: Investor Rights Agreement (Dresser Inc), Investor Rights Agreement (Dresser Inc)
Transactions with Affiliates. (a) The Company will Lessee shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate Affiliate, including any Non-Recourse Subsidiary (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Lessee or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Lessee or such Restricted Subsidiary with an unrelated Person; and
Person and (2) the Company delivers to the Trustee:
(Ab) with respect to (i) any Affiliate Transaction or series of related Affiliate Transactions involving with an aggregate consideration value in excess of $15.0 million500,000, a resolution majority of the Board directors of Directors set forth the General Partner having no direct or indirect economic interest in an Officers’ Certificate certifying such Affiliate Transaction determines by resolution that such Affiliate Transaction complies with this Section 4.11(aclause (a) above and that approves such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
and (Bii) with respect to any Affiliate Transaction involving the purchase or series other acquisition or sale, lease, transfer or other disposition of related Affiliate Transactions involving aggregate consideration properties or assets other than in the ordinary course of business, in each case, having a fair market value or for net proceeds in excess of $25.0 million15,000,000, Lessee delivers to Agent and the Participants an opinion as to the fairness to the Company Lessee or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
; provided, however, that (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement stock option agreement entered into by the Company Lessee or any of its the Restricted Subsidiaries in the ordinary course of business;
business and consistent with the past practice of Lessee (2or the General Partner) transactions (including a merger) 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 such Restricted Subsidiary, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate permitted by the provisions of Section 4.07 hereof 5.28, and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement transactions entered into by Lessee in the ordinary course of business in connection with reinsuring the ESSI Merger;
self-insurance programs or other similar forms of retained insurable risks of the retail propane businesses operated by Lessee, the Restricted Subsidiaries and its Affiliates, in each case, shall not be deemed Affiliate Transactions, and (9ii) transactions effected pursuant nothing herein shall authorize the payments by Lessee to agreements the General Partner or any other Affiliate of Lessee for administrative expenses incurred by such Person other than such out-of-pocket administrative expenses as such Person shall incur and Lessee shall pay in effect on the date ordinary course of business; and provided, further, that the foregoing provisions of this Indenture and any amendment, modification, or replacement Section 5.22 shall not apply to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous transfers of accounts receivable of Lessee to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising an SPE in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceany Accounts Receivable Securitization permitted by Section 5.21.
Appears in 2 contracts
Sources: Omnibus Amendment Agreement (Ferrellgas Partners Finance Corp), Participation Agreement, Lease Intended as Security, Loan Agreement (Ferrellgas Partners Finance Corp)
Transactions with Affiliates. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, make any payment to, to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Parent (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of US$2.5 million, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company Parent or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Parent or such Restricted Subsidiary with a Person who is not an unrelated PersonAffiliate; and
(2ii) the Company Parent delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $US$15.0 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Parent; and, in addition,
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $US$25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national international standing, or other recognized independent expert of international standing with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of related transactions is (1) fair from a financial point of view taking into account all relevant circumstances or (2) on terms not less favorable than might have been obtained in a comparable transaction at such time on an arm’s length basis from a Person who is not an Affiliate.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification collective bargaining agreement, consulting agreement agreement, employee benefit arrangements with any employee, consultant, officer or director of the Parent or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar arrangement plans, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company Parent and/or its Restricted Subsidiaries;
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyParent) that is an Affiliate of the Company Parent solely because the Company Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors’ fees, employees or consultants of the Parent or any of its Restricted Subsidiaries;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company Parent to Affiliates of the Company and the granting or performance of registration rightsParent;
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof or any transaction specifically excluded from the definition of “Restricted Payment;”
(vii) Permitted Investments (other than Permitted Investments described in clauses (iii), (xiii) and Permitted Investments(xvii) of the definition thereof);
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9viii) transactions effected pursuant to agreements to, or contemplated by, any agreement in effect on the date of this Indenture Issue Date and transactions pursuant to any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement extension to such agreement, so long as such amendment, modification or extension, taken as a whole, is not materially more disadvantageous to the Holders holders of the NotesNotes than the original agreement as in effect on the Issue Date;
(ix) Management Advances and any waiver or transaction with respect thereto;
(x) transactions with customers, taken as a wholeclients, as determined by 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 that are fair to the Parent or the Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company);
(10) payments made in fulfillment of Issuer or the Company’s obligations arising in connection with Parent or the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedsenior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from a Person who is not an Affiliate; and
(12xi) any transaction effected as part of a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceQualified Securitization Financing.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
: (1a) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company delivers to the Trustee:
: (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company; and (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The . Notwithstanding the foregoing, the following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary;
(2) transactions (including a merger) 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, owns an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ directors fees;
(5) any the issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; and
(7) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceIndenture.
Appears in 2 contracts
Sources: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Transactions with Affiliates. Holdings and the Borrower shall not, nor shall Holdings or the Borrower permit any of the Restricted Subsidiaries to, directly or indirectly, enter into any transaction of any kind with any Affiliate of Holdings, whether or not in the ordinary course of business, other than (a) The Company will not, and will not permit (i) transactions between or among Holdings and/or any of its Restricted Subsidiaries to, make (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and (ii) any payment to, merger or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate consolidation of the Company Borrower and Holdings or any other direct parent company of the Borrower, provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Equity Interests of the Borrower and such merger or consolidation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose, (each an “Affiliate Transaction”), unless:
(1b) such Affiliate Transaction is on terms substantially as favorable to Holdings or such Restricted Subsidiary as would be obtainable by Holdings or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) transactions to effect the Transactions and the payment of all fees and expenses related to the Transactions, (d) transactions for which the board of directors of Holdings has received (and delivered to the Administrative Agent) a written opinion from an Independent Financial Advisor to the effect that the financial terms of such transaction are fair, from a financial standpoint, to Holdings and its Restricted Subsidiaries or not materially less favorable to Holdings and its Restricted Subsidiaries than could reasonably be expected to be obtained at the Company time in an arm’s-length transaction with a Person who was not an Affiliate, (e) the entering into of any agreement (and any amendment or modification of any such agreement) to pay, and the relevant payment of, annual management, consulting, monitoring and advisory fees to the Investors in an aggregate amount in any fiscal year not to exceed the greater of (x) $5,000,000 and (y) 2.5% of Consolidated EBITDA, plus all out-of-pocket reasonable expenses incurred by the Investors in connection with the performance of management, consulting, monitoring, advisory or other services with respect to the Borrower and any Restricted SubsidiarySubsidiaries, (f) Restricted Payments permitted under Section 7.06, (g) [reserved], (h) employment and severance arrangements between Holdings and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business, (i) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of Holdings or any Restricted Subsidiary or Holdings or any other direct or indirect parent of the Borrower, (j) any agreement as in effect as of the Closing Date and set forth on Schedule 7.08 including, without limitation, the Master Consulting and Advisory Services Agreement or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers is not more disadvantageous to the Trustee:
Lenders in any material respect than the original agreement as in effect on the Closing Date) or any transaction contemplated thereby, (Ak) payments by Holdings or any of its Restricted Subsidiaries to the Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with respect acquisitions or divestitures, which payments are (x) made pursuant to any Affiliate Transaction agreements with the Investors described in the offering memorandum related to the Senior Notes or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a(y) and that such Affiliate Transaction has been approved by a majority of the disinterested members Board of Directors of the Board Borrower or Holdings or any other direct or indirect parent of Directors; and
the Borrower in good faith, (Bl) with respect to the entering into of any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting tax sharing agreement or arrangement and any similar arrangement entered into payments permitted by Section 7.06(h)(ii), (m) the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified StockEquity Interests) of the Company Borrower or Holdings to Affiliates the Investors or to Holdings or any other direct or indirect parent of the Company Borrower or Holdings or to any director, officer, employee or consultant thereof and any contribution to the granting capital of Holdings, (n) (i) transactions with customers, clients, suppliers or performance purchasers or sellers of registration rights;
(6) goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to Holdings and its Restricted Payments that do not violate Subsidiaries in the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock reasonable determination of the Company Board of Directors or any the senior management of Holdings, and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (ii) transactions with joint ventures or Unrestricted Subsidiaries entered into in the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder ordinary course of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
business, (8) o) [reserved], (p) the existence of of, or the performance by the Company Borrower or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of the Acquisition Agreement, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date and any amendment thereto or similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Borrower or any Restricted Subsidiaries of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into in connection with after the ESSI Merger;
Closing Date shall only be permitted by this clause (9p) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders extent that the terms of the Notesany such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the Lenders in any material respect than the original agreement as determined by in effect on the Board Closing Date, (q) transactions between the Borrower or any Restricted Subsidiaries and any Person that is an Affiliate solely due to the fact that a director of Directors such Person is also a director of the Company);
(10) payments made in fulfillment Borrower or Holdings or any other direct or indirect parent of the Company’s obligations arising in connection with Borrower; provided, however, that such director abstains from voting as a director of the ESSI Merger;
Borrower or such direct or indirect parent of the Borrower, as the case may be, on any matter involving such other Person and (11r) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series pledges of transactions involving payments not in excess Equity Interests of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceUnrestricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Delta Tucker Holdings, Inc.), Credit Agreement (Phoenix Consulting Group, LLC)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of the Company $50,000 (each each, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction is on terms that taken as a whole are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a person who is not an unrelated PersonAffiliate; and
and (2ii) the Company delivers to the Trustee:
: (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate to the effect that such Affiliate Transaction complies with this Section 4.11 and has been approved by a majority of the Independent Members of the Board of Directors or if there are no Independent Members, then such Affiliate Transaction has received unanimous approval of the Board of Directors and an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an accounting or investment banking firm of national standing or an appraisal from an MAI appraiser, if appropriate; and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal accounting or investment banking firm of national standing.
(b) standing or an appraisal from an MAI appraiser, if appropriate. The following items will shall not be deemed to be Affiliate Transactions and, therefore, will and therefore shall not be subject to the provisions of Section 4.11(a):
the prior paragraph: (1) any employment agreement, employee benefit plan, officer and director indemnification agreementemployment, consulting or other compensation agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
; provided that any consulting or other compensation agreement entered into with a current or former senior officer or director of the Company or any of its Restricted Subsidiaries providing for the payment of fees in excess of $100,000 annually per person must be approved by a majority of the disinterested members of the Board of Directors or the compensation committee thereof or if there are no such disinterested members by unanimous approval of the Board of Directors or such committee; (2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
Company; (64) Restricted Payments that do not violate are permitted by the provisions of this Indenture described under Section 4.07 hereof hereof; (5) the payment of reasonable and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or capital stock Consultants of the Company or any Subsidiary; (6) loans in the ordinary course of business to officers, directors, employees or Consultants which are approved by a majority of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder Independent Members of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
Company in good faith or, if there are no Independent Members of the Board of Directors, by a unanimous vote of the Board of Directors; (107) payments made any agreement as in fulfillment effect as of the Issue Date or any amendment or modification thereto (so long as any such amendment or modification is not disadvantageous to the holders of the Notes in any material respect) or any transaction contemplated thereby; and (8) agreements between the Company or any Restricted Subsidiary and officers and directors of the Company with respect to home purchases pursuant to a home purchase program available to officers and directors of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 2 contracts
Sources: Indenture (Wci Communities Inc), Indenture (Communities Home Builders Inc)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries (other than any Excluded Subsidiary) to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of related transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company involving aggregate consideration in excess of $10.0 million (each of the foregoing, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unrelated Personunaffiliated party; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 250.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors); and:
(B3) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 500.0 million, an the Company must obtain and deliver the Trustee a written opinion as to of a nationally recognized investment banking, accounting or appraisal firm stating that the fairness transaction is fair to the Company or such Subsidiary of such Affiliate Transaction Subsidiary, as the case may be, from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingview.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) shall not apply to:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into Restricted Payments that are permitted by the Company or any of its Restricted Subsidiaries in the ordinary course of businessSection 4.07;
(2) transactions the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Subsidiary;
(3) the payment of reasonable and customary compensation and other benefits (including a mergerretirement, health, option, deferred compensation and other benefit plans) and indemnities to Officers and employees of the Company or any Subsidiary;
(4) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any the issuance of Equity Interests (other than Disqualified StockEquity Interests) of the Company otherwise permitted hereunder and capital contributions to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity agreement or arrangement as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture Issue Date and any amendment, modification, amendment or replacement to such agreement (modification thereto so long as the amendment, such amendment or modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made Notes in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedany material respect; and
(127) a transaction transactions with customers, clients, suppliers or series purchasers or sellers of transactions involving payments not goods or services, in excess each case, in the ordinary course of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof business and consistent with past practicepractice and on terms that are no less favorable to the Company or such Subsidiary, as the case may be, as determined in good faith by the Company, than those that could be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of the Company.
Appears in 2 contracts
Sources: Indenture (Residential Capital, LLC), Indenture (Residential Capital, LLC)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer transfer, exchange or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate Affiliate, officer or director of the Company (each each, an “Affiliate Transaction”), ) unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration with a fair market value in excess of $15.0 US$50.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such or series of related Affiliate Transaction Transactions has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series Directors of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingCompany.
(b) The following items will not shall be deemed not to be constitute Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):paragraph (a) above:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries Subsidiary in the ordinary course of businessbusiness and consistent with the past practice of the Company or such Restricted Subsidiary;
(2) transactions (including a merger) between or among the Company and/or its the 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, owns an Equity Interest in such Person, provided such transactions are on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unrelated Person;
(4) payment of reasonable directors’ feesdirectors fees to Persons who are not otherwise Affiliates of the Company;
(5) any issuance sales of Equity Interests (of the Company, other than Disqualified Stock) of the Company Stock or Back-to-Back Securities, to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) any agreement or arrangement as in effect on October 8, 2003 or any amendment thereto or any transaction contemplated thereby, including pursuant to any amendment thereto, in any replacement agreement or arrangement thereto so long as any such amendment or replacement agreement or arrangement is not more disadvantageous to the Company or the Restricted Payments Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on October 8, 2003;
(7) transactions that do not violate are permitted by the provisions of Section 4.07 hereof and 4.10 hereof;
(8) Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);Tax Benefit Transaction; and
(10) payments made in fulfillment transactions effected as part of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceQualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc)
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Issuer involving aggregate payments or consideration in excess of $1.0 million (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors of the Issuer set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies or series of related Affiliate Transactions comply with this Section 4.11(a) 4.10 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Issuer; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 5.0 million, an opinion as to the fairness to the Company Issuer or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an independent accounting, appraisal or investment banking firm together with a resolution of national standingthe board of directors of the Issuer set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions comply with this covenant and that such Affiliate Transaction has been approved by a majority of disinterested members of the board of directors of the Issuer.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):4.10(a) hereof:
(1) any employment employment, severance, incentive or consulting agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Issuer or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto, and the issuance of Equity Interests of the Issuer (other than Disqualified Stock) to directors and employees, including, without limitation, any amendments thereto entered into after the Issue Date; provided, that the terms of any such amendment are not materially less favorable to the Issuer or any of its Restricted Subsidiaries, taken as a whole (as determined in good faith by the Board of Directors of the Issuer);
(2) transactions (including a merger) between or among the Company Issuer and/or its Restricted SubsidiariesSubsidiaries or any entity that becomes a Restricted Subsidiary of the Issuer as part of such transaction or transactions;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyIssuer) that is an Affiliate of the Company Issuer solely because the Company Issuer owns, directly or through a one of its Restricted SubsidiarySubsidiaries, an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company Issuer to Affiliates of the Company and the granting or performance of registration rightsIssuer;
(65) Permitted Investments (other than as described in clause (11) of the definition thereof), Permitted Payments or Restricted Payments that do not violate the provisions of Section 4.07 hereof 4.06 hereof;
(6) loans and Permitted Investmentsadvances (including in respect of indemnification or similar arrangements) to officers, directors, consultants and employees of the Issuer or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed $1.5 million at any one time outstanding;
(7) if such Affiliate Transaction is any transaction with any Person solely suppliers, franchisees, clients, joint venture partners or purchasers or sellers of goods or services (including pursuant to joint venture agreements) in its capacity as a holder the ordinary course of debt or capital stock of business that are on substantially similar terms to those contained in similar transactions by the Company Issuer or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder with unaffiliated suppliers, franchisees, clients, joint venture partners or purchasers or sellers of debt goods or capital stock of the Company or any of the Company’s Restricted Subsidiariesservices (including pursuant to joint venture agreements);
(8) transactions between the existence of or the performance by the Company Issuer or any of the Company’s its Restricted Subsidiaries with and any Person that is an Affiliate of the Issuer or any of its obligations under Restricted Subsidiaries solely because a member of the terms Board of Directors of such Person is also a member of the Board of Directors of the Issuer; provided that such member of the Board of Directors abstains from voting on any stockholders or similar agreement entered into in connection with the ESSI Mergermatter involving such other Person;
(9) the entry into any customary tax-sharing agreement between the Issuer or any of its Restricted Subsidiaries; provided that any payment made under any such tax-sharing agreement is, at the time made, otherwise permitted under Section 4.06 hereof;
(10) intercompany transactions effected pursuant to agreements undertaken in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement good faith (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10Issuer) payments made in fulfillment for the purpose of improving the consolidated tax efficiency of the Company’s obligations arising Issuer and its Subsidiaries and not for the purpose of circumventing any covenant or other provision set forth in connection with the ESSI Mergerthis Indenture;
(11) reasonable the incurrence or repayment of Indebtedness incurred pursuant to Section 4.08(b)(15) hereof;
(12) any contracts, instruments or other agreements or arrangements in each case as in effect on the Issue Date, and documented attorneyany transactions pursuant thereto or contemplated thereby, or any amendment, modification or supplement thereto or any replacement thereof entered into from time to time, so long as such agreement or arrangement as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Issuer and its Restricted Subsidiaries at the time executed than the original agreement or arrangement as in effect on the Issue Date (as determined in good faith by the Board of Directors of the Issuer);
(13) any contribution to the common equity capital of the Issuer or any of its Restricted Subsidiaries and any registration rights in favor of the holders of any of the Issuer’s fees and expenses paid in consideration securities;
(14) the pledge of Equity Interests of any Unrestricted Subsidiary of the Issuer;
(15) a transaction (or series of related transactions) for services renderedwhich the Issuer or any of its Restricted Subsidiaries delivers to the Trustee an opinion issued by an independent nationally recognized accounting, appraisal or investment banking firm stating that the terms of such transaction (or series of related transactions) are fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 4.10(a)(1) hereof;
(16) any merger, consolidation or reorganization of the Issuer with an Affiliate of the Issuer solely for the purpose of reincorporating the Issuer under the laws of another state of the United States of America; and
(1217) any payment in respect of the Notes made on a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant pro rata basis to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceHolders thereof.
Appears in 2 contracts
Sources: Indenture (Nathans Famous Inc), Indenture (Nathans Famous Inc)
Transactions with Affiliates. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Borrower (each each, an “Affiliate Transaction”)) involving aggregate payments in excess of $5,000,000, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company Borrower (as reasonably determined by the Borrower) or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company Borrower delivers to the TrusteeAdministrative Agent:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million25,000,000, a resolution of the Board of Directors set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 10.06 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million50,000,000, an opinion as to the fairness to the Company Borrower or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a10.06(a):
(1i) any employment agreement or director’s engagement agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries or approved by an Authorized Officer of the Borrower in the ordinary course of businessgood faith;
(2ii) transactions (including a merger) between or among the Company Borrower and/or its Restricted Subsidiaries;
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyBorrower) that is an Affiliate of the Company Borrower solely because the Company Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable directors’ fees;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting Borrower or performance of registration rightsits Restricted Subsidiaries;
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments10.03;
(7vii) if any agreement in effect as of the Closing Date or any amendment thereto or replacement thereof and any transaction contemplated thereby or permitted thereunder, so long as any such Affiliate Transaction is with any Person solely in its capacity amendment or replacement agreement taken as a holder of debt or capital stock of whole is not more disadvantageous to the Company or any of Lenders than the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of original agreement as in effect on the Company or any of the Company’s Restricted SubsidiariesClosing Date;
(8) viii) payments or advances to employees or consultants that are incurred in the ordinary course of business or that are approved by an Authorized Officer of the Borrower in good faith;
(ix) the existence of of, or the performance by the Company Borrower or any of the Company’s its Restricted Subsidiaries with any of its obligations under the terms of of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Borrower or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into in connection with after the ESSI Merger;
Closing Date shall only be permitted by this clause (9ix) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders extent that the terms of the Notesany such amendment or new agreement are not, taken as a whole, as determined by otherwise materially more disadvantageous to the Board of Directors of the Company)Lenders;
(10x) payments made in fulfillment transactions permitted by, and complying with, the provisions of the Company’s obligations arising in connection with the ESSI MergerSection 10.02;
(11xi) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services (including pursuant to joint venture agreements) in compliance with the terms of this Agreement that are fair to the Borrower and its Restricted Subsidiaries, or are on terms not materially less favorable taken as a whole as might reasonably have been obtained at such time from an unaffiliated party, in each case, in the reasonable determination of a senior financial officer of the Borrower;
(xii) any repurchase, redemption or other retirement of Capital Stock of the Borrower held by employees of the Borrower or any of its Subsidiaries;
(xiii) loans or advances to employees or consultants;
(xiv) any Permitted Investment in another Person involved in a Permitted Business;
(xv) transactions in which the Borrower or any Restricted Subsidiary of the Borrower, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view or meets the requirements of this Section 10.06;
(xvi) the issuance of any letters of credit to support obligations of any Excluded Subsidiary;
(xvii) transactions between or among Excluded Subsidiaries, and any guarantee and/or other credit support provided by the Borrower and/or any Restricted Subsidiary in respect of any Subsidiary or any Minority Investment so long as all holders of Equity Interests in such Subsidiary or Minority Investment (including the Borrower or any Restricted Subsidiary, as applicable) shall participate directly or indirectly in such applicable guarantee and/or other credit support or shall provide a commitment in respect of any related obligation, in each case, on a pro rata basis relative to their Equity Interests in such Minority Investment; provided that any such transaction shall be fair and reasonable and documented attorney’s fees beneficial to the Borrower and expenses paid in consideration for services rendered; and
its Restricted Subsidiaries (12taken as a whole) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.Prudent Industry Practice;
(xviii) transactions relating to management, marketing, administrative or technical services between the Borrower and its Restricted Subsidiaries, or between Restricted Subsidiaries;
(xix) any tax sharing agreement between or among the Borrower and its Subsidiaries so long as such tax sharing agreement is on fair and reasonable terms with respect to each participant therein;
(xx) any shared services agreements between or among the Borrower, any of its Restricted Subsidiaries and/or any Unrestricted Subsidiaries on terms not materially less favorable taken as a whole as might reasonably have been obtained at such time from an unaffiliated party, in each case, in the reasonable determination of a senior financial officer of the Borrower; and
Appears in 2 contracts
Sources: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Transactions with Affiliates. (a) The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or the Guarantors shall enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, such Guarantor than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary Guarantor with an unrelated Personperson; and
(2) the Company delivers to the Trustee:
(A) with respect to any if such Affiliate Transaction or series of related Affiliate Transactions involving involves aggregate consideration payments in excess of $15.0 250.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has either (A) been approved by a majority of the disinterested members of the Company’s or the applicable Guarantor’s Board of Directors or (B) if there are no disinterested members of the Company’s or the applicable Guarantor’s Board of Directors; and
(B) with respect to any Affiliate Transaction , the Company or series such Guarantor has obtained the favorable opinion of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion independent expert as to the fairness to the Company or such Subsidiary of such Affiliate Transaction to the relevant Guarantor, as the case may be, from a financial point of view issued by view, and the Guarantor delivers to the Trustee an accountingOfficer’s Certificate, appraisal upon which the Trustee shall be permitted to conclusively rely, together with a copy of the applicable resolution of the Company’s or investment banking firm such Guarantor’s Board of national standing.Directors set forth in an Officer’s Certificate certifying that such Affiliate Transaction has been so approved and complies with clause (1) above;
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement (a) transactions between or any similar arrangement entered into by among the Company and the Guarantors and (b) any transaction pursuant to, or any of its Restricted Subsidiaries in the ordinary course of businessrelated to, an Intercompany Loan;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof 4.11 hereof;
(3) any transactions pursuant to agreements in effect on the Issue Date and Permitted Investmentsany modifications, extensions or renewals thereof that are no less favorable to the Company or the applicable Guarantor than such agreement as in effect on the Issue Date;
(4) transactions with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any Guarantor, relating solely to such Indebtedness or Capital Stock;
(5) any transaction in connection with a Spectrum Joint Venture that is not prohibited by Section 4.13(a)(1) or Section 4.13(a)(2) hereof;
(6) so long as it complies with clause (a) of this Section 4.14, and the covenant set forth under Section 4.13, transactions with respect to any sale, lease, conveyance, license or other disposition of any Spectrum Assets in connection with the commercialization or utilization of wireless spectrum licenses;
(7) if overhead and other ordinary-course allocations of costs and services on a reasonable basis so long as such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Companyarrangements are comparable to arrangements made on an arm’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiarieslength basis;
(8) allocations of tax liabilities and other tax-related items among the existence Guarantors and its Affiliates (including pursuant to a tax sharing agreement or arrangement) based principally upon the financial income, taxable income, credits and other amounts directly related to the respective parties, to the extent that the share of or such liabilities and other items allocable to the performance Guarantors and its Subsidiaries shall not exceed the amount that such Persons would have been responsible for as a direct taxpayer;
(9) so long as it complies with clause (a) of this Section 4.14, the provision of backhaul, uplink, transmission, billing, customer service, programming acquisition and other ordinary course services by the Company or any of the Company’s Restricted Subsidiaries Guarantors to Satellite Communications Operating Corporation and to Transponder Encryption Services Corporation on a basis consistent with past practice;
(10) arrangements or agreements entered into in the ordinary course of business providing for the acquisition or provision of goods and services;
(11) transactions with the Company or any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders controlled Affiliates that have been approved by a majority of the Notes, taken as members of the audit committee of the Company or a whole, as determined by majority of Disinterested Directors or a special committee of the Board of Directors of the Company)Company consisting solely of Disinterested Directors;
(1012) payments made amendments, modifications, renewals or replacements from time to time of any of the contracts, arrangements, services or other matters referred to or contemplated by any of the foregoing items; provided that any such amendments, modifications, renewals or replacements shall not be on terms materially less advantageous to the Company or the Guarantors; and
(13) transactions with any person or any of its controlled affiliates that owns or acquires from the Company or any Subsidiary all or substantially all of the assets primarily used (or intended to be used) in fulfillment connection with, or reasonably related to, the Retail Wireless Business, as determined in good faith by the Company or such Subsidiary, that have been approved by a majority of the members of the audit committee of the Company or a special committee of the Company’s obligations arising in connection with Board of Directors consisting solely of members of the ESSI Merger;
(11) reasonable and documented attorneyCompany’s fees and expenses paid in consideration for services rendered; and
(12) a transaction Board of Directors who are not directors, officers or series employees of transactions involving payments not in excess such person or any of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceits controlled Affiliates.
Appears in 2 contracts
Sources: Indenture (DISH Network CORP), Indenture (SNR Wireless LicenseCo, LLC)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1i) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(Aii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million25,000,000, the Company delivers to the Administrative Agent either (I) a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 6.6 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors or (BII) with respect to any such Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess as to which there are no disinterested members of $25.0 millionthe Board of Directors, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing.international standing qualified to perform the task for which such firm has been engaged (as determined by the Company in good faith)
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1i) any employment agreementdirector, officer, employee benefit planand consultant compensation, officer benefit, reimbursement and director indemnification agreementagreements, consulting agreement or any similar arrangement plans and arrangements (and payment awards in connection therewith) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(3iii) 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 in, or controls, such Person;
(4iv) payment of reasonable directors’ fees;
(5x) any issuance of Qualified Equity Interests of the Company (other than Disqualified Designated Preferred Stock) of the Company to Affiliates of the Company an Affiliate and the granting or performance of registration rightsrights in respect of any Qualified Equity Interests of the Company (other than Designated Preferred Stock), which rights have been approved by the Board of Directors of the Company or (y) any contribution to the capital of the Company or any Restricted Subsidiary;
(6v) Restricted Payments that do not violate the provisions Section 6.3 and Investments consisting of Section 4.07 hereof and Permitted Investments;
(7vi) if such Affiliate Transaction is with any Person solely in its capacity as a holder the performance of debt or capital stock obligations of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations Subsidiary under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements that is in effect as of or on the date of this Indenture Closing Date and set forth on Schedule 6.6(b)(vi) or 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 to such agreement (thereto, so long as the any such amendment, modification modification, supplement, extension or renewal, or replacement agreement, is not materially more disadvantageous to the Holders of the Notes, Lenders taken as a whole, whole than the original agreement as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedeffect on Closing Date; and
(12vii) transactions effected as part of a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceQualified Securitization Transaction.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Navios Maritime Partners L.P.)
Transactions with Affiliates. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, make any payment to, to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Parent (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of US$2.5 million, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company Parent or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Parent or such Restricted Subsidiary with a Person who is not an unrelated PersonAffiliate; and
(2ii) the Company Parent delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $US$15.0 million, a resolution of the Board of Directors of the Parent set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Parent; and, in addition,
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $US$25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national international standing, or other recognized independent expert of international standing with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of related transactions is (1) fair from a financial point of view taking into account all relevant circumstances or (2) on terms not less favorable than might have been obtained in a comparable transaction at such time on an arm’s length basis from a Person who is not an Affiliate.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification collective bargaining agreement, consulting agreement agreement, employee benefit arrangements with any employee, consultant, officer or director of the Parent or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar arrangement plans, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company Parent and/or its Restricted Subsidiaries;
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyParent) that is an Affiliate of the Company Parent solely because the Company Parent owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors’ fees, employees or consultants of the Parent or any of its Restricted Subsidiaries;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company Parent to Affiliates of the Company and the granting or performance of registration rightsParent;
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments4.07;
(7vii) if such Affiliate Transaction is with any Person solely Permitted Investments (other than Permitted Investments described in its capacity as a holder of debt or capital stock clauses (iii), (xiii) and (xvii) of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariesdefinition thereof);
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9viii) transactions effected pursuant to agreements to, or contemplated by, any agreement in effect on the date of this Indenture Issue Date and transactions pursuant to any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement extension to such agreement, so long as such amendment, modification or extension, taken as a whole, is not materially more disadvantageous to the Holders holders of the NotesNotes than the original agreement as in effect on the Issue Date;
(ix) Management Advances and any waiver or transaction with respect thereto;
(x) transactions with customers, taken as a wholeclients, as determined by 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 that are fair to the Parent or the Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company);
(10) payments made in fulfillment of Issuer or the Company’s obligations arising in connection with Parent or the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedsenior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from a Person who is not an Affiliate; and
(12xi) any transaction effected as part of a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceQualified Securitization Financing.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million10,000,000, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million20,000,000, an a written opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a 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 4.11(a):3.8(a) above:
(1) any Restricted Payment (other than a Restricted Investment) permitted to be made pursuant to Section 3.4;
(2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans and other reasonable fees, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with officers, directors or employees of the Company and its Restricted Subsidiaries;
(3) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed $2,000,000;
(4) any transaction between the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries;
(5) the payment of reasonable and customary fees or compensation paid to, and indemnity or liability insurance provided on behalf of, officers, directors or employees of the Company or any Restricted Subsidiary of the Company;
(6) any reasonable employment or severance agreement or other employee compensation agreement, employee benefit arrangement or plan, officer and director indemnification agreement, consulting agreement or any similar arrangement amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(27) transactions (including a merger) between or among the performance of obligations of the Company and/or or any of its Restricted Subsidiaries;
Subsidiaries under the terms of any written agreement to which the Company or any of its Restricted Subsidiaries is a party on the Issue Date, as these agreements may be amended, modified or supplemented from time to time; provided, however, that any future amendment, modification or supplement entered into after the Issue Date will be permitted to the extent that its terms do not materially and adversely affect the rights of any Holders of the Notes (3) transactions with a Person (other than an Unrestricted Subsidiary as determined in good faith by the Board of Directors of the Company) that is an Affiliate as compared to the terms of the Company solely because agreements in effect on the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such PersonIssue Date;
(4) payment of reasonable directors’ fees;
(5) 8) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to to, or receipt of capital contribution from, Affiliates of the Company and the granting (or performance of registration rights;
(6a Person that thereby becomes an Affiliate) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on between the date of this Indenture Company and any amendmentPerson, modification, or replacement to such agreement (so long as the amendment, modification or replacement a director of which is not materially more disadvantageous to the Holders of the Notes, taken as also a whole, as determined by the Board of Directors 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;
(10) payments made advances to or reimbursement of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in fulfillment the ordinary course of the Company’s obligations arising in connection with the ESSI Merger;business; and
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) the consummation of the acquisition of ▇▇▇▇▇▇▇ Energy, LLC, a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsColorado limited liability company, agreements or other arrangements in existence on the date hereof and consistent with past practiceterms described in the Offering Memorandum.
Appears in 2 contracts
Transactions with Affiliates. (a) The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or shall enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, transaction with any Affiliate of the Company (each an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is other than on terms that are and conditions not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, such Subsidiary than those that which would have been be obtained in a comparable arms’ length transaction by with a Person that is not an Affiliate. This Section 7 shall not apply to (a) transactions between the Company or such Restricted Subsidiary with an unrelated Person; and
(2) its Subsidiaries and Affiliates of the Company delivers related to the Trustee:
transactions contemplated by the Merger Agreement, including (Ai) with respect obtaining debt-financing from and paying related fees and expenses to Affiliates of IPC; and (ii) entering into, performing its obligations under and making payments as contemplated by the Advisory Services Agreement, (b) transactions between the Company or any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution its Subsidiaries and any employee of the Board Company or any of Directors set forth in an Officers’ Certificate certifying its Subsidiaries that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been are approved by a majority of the disinterested members Company’s directors, (c) the payment of reasonable directors’ fees (other than to the IPC Directors) and the provision of customary indemnification to directors and officers of the Board of Directors; and
Company and its Subsidiaries, (Bd) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to transaction between the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries, (e) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business;
, (2f) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Original Securityholders Agreement, the Company) that is an Affiliate of the Company solely because the Company ownsAmended and Restated Securityholders Agreement, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company this Agreement or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than transaction contemplated thereby or hereby or any other holder of debt or capital stock of agreement in effect on the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement Original Effective Date, that was entered into in connection with the ESSI Merger;
merger referenced in the Amended and Restated Securityholders Agreement, to be entered into in connection with the Merger or any transaction contemplated thereby (9) transactions effected pursuant to the extent such agreements in effect have been disclosed to the Securityholders on or prior to the date of this Indenture Agreement), (g) the issuance of securities of the Company and its Subsidiaries (other than any amendmentissuance in violation of Section 6), modificationand compliance with the terms of any agreement or instrument evidencing, governing or replacement relating to such agreement securities, and (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as h) transactions approved by a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment majority of the Company’s obligations arising directors in connection with good faith (including a majority of the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicedisinterested directors).
Appears in 2 contracts
Sources: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”)") involving aggregate consideration in excess of $5.0 million, unless:
unless (1i) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2ii) the Company delivers to the Trustee:
(A) Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution adopted by the majority of the Board of Directors approving such Affiliate Transaction and set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingabove.
(b) The following items will Notwithstanding Section 1012(a), this Section 1012 shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions following: (i) transactions between or among the Company and/or any of its Restricted Subsidiaries; (ii) Restricted Payments permitted by Section 4.11(a):
1009 hereof; (1iii) any employment agreement, employee benefit plan, officer and director indemnification agreementthe payment of customary annual management, consulting agreement and advisory fees and related expenses to KKR and its Affiliates; (iv) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any similar arrangement entered into Restricted Subsidiary; (v) payments by the Company or any of its Restricted Subsidiaries to KKR and its Affiliates made for any financial advisory, financing, underwriting or placement services or in the ordinary course respect of business;
(2) transactions (including other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a merger) between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary majority of the Company) that is an Affiliate Board of Directors of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
good faith; (4vi) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely transactions in its capacity as a holder of debt or capital stock of which the Company or any of its Restricted Subsidiaries, as the Company’s 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 Subsidiaries where such Person is treated no more favorably than any other holder Subsidiary from a financial point of debt view or capital stock meets the requirements of clause (i) of the preceding paragraph; (vii) payments or loans to employees or consultants which are approved by a majority of the Board of Directors of the Company in good faith; (viii) any agreement as in effect as of the Issuance Date or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of the Company’s Restricted Subsidiaries;
Notes in any material respect) or any transaction contemplated thereby; (8) ix) the existence of of, or the performance by the Company or any of the Company’s its Restricted Subsidiaries with any of its obligations under the terms of of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issuance Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into in connection with after the ESSI Merger;
Issuance Date shall only be permitted by this clause (9ix) transactions effected pursuant to agreements in effect on the date extent that the terms of this Indenture and any amendment, modification, such amendment or replacement to such new agreement (so long as the amendment, modification or replacement is are not materially more otherwise disadvantageous to the Holders of the NotesNotes in any material respect; (x) the payment of all fees and expenses related to the Merger and the Financings; (xi) transactions with customers, taken as a wholeclients, as determined by suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company);
Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and (10xii) payments made in fulfillment sales of the Company’s obligations arising accounts receivable, or participations therein, in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceany Receivables Facility.
Appears in 2 contracts
Sources: Indenture (NXS I LLC), Indenture (Amphenol Corp /De/)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
: (1a) such Affiliate Transaction (when viewed together with related Affiliate Transactions, if any) is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
, and (2b) the Company delivers to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors (Bof which there must be at least one), and (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
; provided that (bx) the Company and its Restricted Subsidiaries may enter into Affiliate Transactions pursuant to the Supply Agreement, the Foundry Agreement, the Asset Purchase Agreement, the Transition Services Agreement and the Intellectual Property Rights Licensing Agreement, and may amend, modify and supplement such agreements from time to time, so long as the Company shall have determined that any such amendment, modification or supplement will not have a material adverse economic effect on the Company and its Subsidiaries, taken as a whole, and (y) the Company and its Restricted Subsidiaries may only enter into transactions pursuant to the Supply Agreement, the Foundry Agreement, the Asset Purchase Agreement, the Transition Services Agreement and the Intellectual Property Rights Licensing Agreement, and amend, modify and supplement such agreements from time to time, in circumstances in which clause (x) is not applicable, if a majority of the disinterested members of the Board of Directors (of which there must be at least one) shall have approved such transaction, amendment, modification or supplement; provided, further, that in the case of both clauses (x) and (y), the Company shall deliver to the Trustee within 30 days of such transaction, amendment, modification or supplement an Officer's Certificate (1) describing the transaction, amendment, modification or supplement approved, (2) in the case of transactions, amendments, modifications and supplements to which clause (x) is applicable, setting forth the determination of the Company required pursuant to clause (x), and (3) in the case of transactions, amendments, modifications and supplements to which clause (y) is applicable, attaching a resolution of the Board of Directors certifying that such Affiliate Transaction complies with this covenant. The following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraphs:
(1a) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries or any employee benefit plan available to employees of the Company and its Subsidiaries generally, in each case in the ordinary course of businessbusiness and consistent with the past practice of the Company or such Restricted Subsidiary;
(2b) transactions (including a merger) Affiliate 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 Equity Interest in such Person;
(4c) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company directors fees to Persons who are not otherwise Affiliates of the Company and the granting or performance indemnity provided on behalf of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof officers, directors and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock employees of the Company or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined in good faith by the Board of Directors of the Company);
(10d) payments made in fulfillment any Affiliate Transactions pursuant to which the Company makes short-term advances or otherwise makes short-term loans to Anam Semiconductor, Inc., which advances or loans are to be repaid by Anam Semiconductor, Inc. (i) within three months from the date of such advance or loan and (ii) by offsets by the Company of amounts payable by the Company to Anam Semiconductor, Inc. pursuant to the Supply Agreement, if a majority of the Company’s obligations arising in connection with disinterested members of the ESSI Merger;
Board of Directors (11of which there must be at least one) reasonable shall have approved such transaction, amendment, modification or supplement; provided that the total amount of such advances and documented attorney’s fees and expenses paid in consideration for services renderedloans outstanding at any one time shall not exceed $50.0 million; and
(12e) a any Restricted Payments that are permitted by Section 4.07 hereof. For purposes of this Section 4.11, any transaction or series of transactions involving payments not related Affiliate Transactions between the Company or any Restricted Subsidiary and an Affiliate that is approved by a majority of the disinterested members of the Board of Directors (of which there must be at least one to utilize this method of approval) and evidenced by a board resolution or for which a fairness opinion has been issued shall be deemed to be on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in excess of $5.0 million made pursuant to contracts, agreements a comparable transaction by the Company or other arrangements in existence on the date hereof such Restricted Subsidiary with an unrelated Person and consistent with past practicethus shall be permitted under this Section 4.11.
Appears in 2 contracts
Sources: Indenture (Amkor Technology Inc), Indenture (Amkor Technology Inc)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate of the Company; and
(2ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company have determined in good faith that the criteria set forth in the immediately preceding clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company; and
and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 75.0 million, an the Board of Directors of the Company shall also have received a written opinion as to the fairness to the Company or such Subsidiary and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items will not be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1i) any employment agreementtransaction with the Company, employee benefit plana Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, officer joint venture or similar entity;
(ii) Restricted Payments and director indemnification agreementPermitted Investments (other than pursuant to clauses (3), consulting agreement (10) and (11) of the definition thereof) permitted by this Indenture;
(iii) the payment to the Sponsors, any of their Affiliates, and officers of the Company or any similar arrangement of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination payments and related reasonable expenses pursuant to (A) the Advisory Agreement or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the Advisory Agreement) or (B) other agreements as in effect on the Issue Date that are (x) entered into in connection with the Transactions and (y) as described in the Offering Memorandum or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date);
(iv) the payment of reasonable and customary compensation and fees to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent corporations, or any Restricted Subsidiary, as determined in good faith by the Board of Directors of the Company or senior management thereof;
(v) payments made by the Company or any Restricted Subsidiary to the Sponsors and any of their Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the disinterested members of the Board of Directors of the Company in good faith;
(vi) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view;
(vii) payments or loans (or cancellations of loans) to employees or consultants of the Company or any of its direct or indirect parent corporations or any Restricted Subsidiary which are approved by the Board of Directors of the Company and which are otherwise permitted under this Indenture, but in any event not to exceed $10.0 million in the aggregate outstanding at any one time;
(viii) payments made or performance under any agreement as in effect on the Issue Date or as described in the Offering Memorandum (other than the Advisory Agreement and the Shareholders Agreement, but including, without limitation, each of the other agreements entered into in connection with the Transactions);
(ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the Shareholders Agreement (including any registration rights agreement or purchase agreements related thereto to which it is a party on the Issue Date and any similar agreement that it may enter into thereafter); provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to the Shareholders Agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (ix) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to holders of the Notes in any material respect than the original agreement as in effect on the Issue Date;
(x) the Transactions and the payment of all transaction, underwriting, commitment and other fees and expenses incurred in connection with the Transactions;
(xi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture that are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(2xii) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company and the granting or performance of registration rights(other than a Subsidiary);
(6xiii) Restricted Payments that do not violate investments by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely Sponsors in its capacity as a holder of debt or capital stock securities of the Company or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as (i) the amendment, modification investment is being offered generally to other investors on the same or replacement is not materially more disadvantageous to favorable terms and (ii) the Holders investment constitutes less than 5% of the Notes, taken as a whole, as determined by the Board proposed or outstanding issue amount of Directors such class of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedsecurities; and
(12xiv) any transaction with a transaction or series Securitization Subsidiary effected as part of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicea Qualified Securitization Financing.
Appears in 2 contracts
Sources: Indenture (Sensata Technologies B.V.), Indenture (Sensata Technologies Holland, B.V.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
: (1a) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company delivers to the Trustee:
: (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors of the Company set forth in an officers' certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company; and (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in of the Company shall also have received a written opinion from an Officers’ Certificate certifying Independent Qualified Party to the effect that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by is fair, from a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionfinancial standpoint, an opinion as to the fairness to the Company and its Restricted Subsidiaries or such Subsidiary of such Affiliate Transaction from not materially less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm's-length transaction with a financial point of view issued by Person who was not an accountingAffiliate. Notwithstanding the foregoing, appraisal or investment banking firm of national standing.
(b) The the following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary;
(2) transactions (including a merger) 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, owns an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ directors fees;
(5) any the issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof;
(7) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedIndenture; and
(12) a transaction 8) transfers of accounts receivable, or series of transactions involving payments not participations therein, in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent connection with past practiceany Receivables Facility.
Appears in 2 contracts
Sources: Indenture (Macdermid Inc), Indenture (Airgas East Inc)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2b) the Company delivers to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million300,000, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related . Notwithstanding the foregoing, the aggregate consideration for all Affiliate Transactions involving aggregate consideration in excess of any fiscal year shall not exceed $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) 1,000,000. The following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1i) any employment agreement (other than a Management Agreement or other agreement with a party to a management agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement ) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business and consistent with the past practice of the Company or such Subsidiary, (2ii) transactions (including a merger) 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 Equity Interest in such Person;
(4iii) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company ' fees to Persons who are not otherwise Affiliates of the Company and the granting or performance of registration rights;
Company, (6iv) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;(v) provision of officers' and directors' indemnification and insurance in the ordinary course of business to the extent permitted by applicable law.
(7b) if such Affiliate Transaction is with The Company shall not amend, supplement, terminate or otherwise modify any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceManagement Agreement.
Appears in 2 contracts
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of the Company $250,000 (each each, an “Affiliate Transaction”), unless:
unless (1i) such Affiliate Transaction is on terms that taken as a whole are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a person who is not an unrelated PersonAffiliate; and
and (2ii) the Company delivers to the Trustee:
: (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying to the effect that such Affiliate Transaction complies with this Section 4.11(a) 4.10 and that such Affiliate Transaction has been approved by a majority of the disinterested members Independent Members of the Board of DirectorsDirectors or if there are no Independent Members, then such Affiliate Transaction has received unanimous approval of the Board of Directors and an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an accounting or investment banking firm of national standing or an appraisal from an MAI appraiser, if appropriate; and
and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 20.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal accounting or investment banking firm of national standing.
(b) standing or an appraisal from an MAI appraiser, if appropriate. The following items will shall not be deemed to be Affiliate Transactions and, therefore, will and therefore shall not be subject to the provisions of Section 4.11(a):
the prior paragraph: (1) any employment agreement, employee benefit plan, officer and director indemnification agreementemployment, consulting or other compensation agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
; provided that any consulting or other compensation agreement entered into with a current or former senior officer or director of the Company or any of its Restricted Subsidiaries providing for the payment of fees in excess of $500,000 annually per person must be approved by a majority of the disinterested members of the Board of Directors or the compensation committee thereof or if there are no such disinterested members by unanimous approval of the Board of Directors or such committee; (2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
Company; (64) Restricted Payments that do not violate are permitted by the provisions of this Indenture described under Section 4.07 hereof hereof; (5) the payment of reasonable and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or capital stock Consultants of the Company or any Subsidiary; (6) to the extent permitted by applicable law, loans in the ordinary course of business to officers, directors, employees or Consultants which are approved by a majority of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder Independent Members of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made Company in fulfillment good faith or, if there are no Independent Members of the Company’s obligations arising Board of Directors, by a unanimous vote of the Board of Directors; (7) any agreement as in connection effect as of the Issue Date or any amendment or modification thereto (so long as any such amendment or modification is not disadvantageous to the holders of the Notes in any material respect) or any transaction contemplated thereby; (8) agreements between the Company or any Restricted Subsidiary and officers and directors of the Company with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made respect to home purchases pursuant to contractsa home purchase program available to officers and directors of the Company and (9) the issuance of the Second Lien Notes to the Principals or to any Affiliates of directors (and any interest paid-in kind whether through the accretion of the Second Lien Notes or the issuance of additional Second Lien Notes and compliance with and related documentation as amended, agreements modified, supplemented or other arrangements in existence on the date hereof and consistent with past practicerefinanced).
Appears in 2 contracts
Sources: Indenture (Valimar Home & Land Company, LLC), Indenture (Wci Communities Inc)
Transactions with Affiliates. (aA) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated Person; andAffiliate of the Company, as determined by the Company in good faith;
(2) the Company delivers to the Trustee:
(Aii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, the Company delivered to the Trustee a resolution Board Resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 3.12 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Biii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an the Company delivers to the Trustee a favorable written opinion from a nationally recognized investment banking, appraisal or accounting firm (1) as to the fairness of the transaction to the Company or such Subsidiary of such Affiliate Transaction and its Subsidiaries from a financial point of view issued or (2) stating that the terms of such transaction are, taken as a whole, no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Subsidiary with a Person that is not an accounting, appraisal Affiliate of the Company or investment banking firm of national standingany Subsidiary.
(bB) The following items will not be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):3.12:
(1i) any employment or severance agreement or other employee compensation agreement, employee benefit arrangement or plan, officer and director indemnification agreement, consulting agreement or any similar arrangement amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company and/or its Restricted Subsidiariesand the Guarantors;
(3iii) 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 such Person;
(4) payment of reasonable directors’ feesfees or expenses, the payments of other reasonable benefits and the provision of officers’ and directors’ indemnification and insurance to the extent permitted by law, in each case in the ordinary course of business;
(5iv) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6v) Restricted Payments transactions with a Person or Affiliate of the Company that do may or may not violate own an Equity Interest in the provisions Company or its Subsidiaries for the purpose of Section 4.07 hereof and Permitted Investmentssecuring hydrocarbon transportation arrangements; provided, that such transactions are on arms-length terms as determined in good faith by an officer of the Company;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9vi) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Issue Date;
(10vii) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedRestricted Payments as permitted pursuant to Section 3.08; and
(12viii) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsany repurchases, agreements redemptions or other arrangements in existence retirements for value by the Company or any of its Subsidiaries of Indebtedness of any class held by any Affiliate of the Company, so long as such repurchase, redemption or other retirement for value is on the date hereof same terms as are made available to investors holding such class of Indebtedness generally, and consistent with past practiceAffiliates have an economic interest in no more than 50% of the aggregate principal amount of such class of Indebtedness.
Appears in 2 contracts
Sources: Indenture (Starry Holdings, Inc.), Convertible Note Subscription Agreement (Starry Holdings, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2ii) the Company delivers to the Trustee:
Trustee (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 3.0 million, a resolution of the Board of Directors Managers set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Managers and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accountingIndependent Financial Advisor. Notwithstanding the foregoing, appraisal or investment banking firm of national standing.
(b) The the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business and consistent with the past practice of the Company or such Restricted Subsidiary, (2ii) transactions (including a merger) exclusively between or among the Company and/or its Restricted Subsidiaries;
, provided such transactions have not otherwise been prohibited by this Indenture, (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 Equity Interest in such Person;
(4iii) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company directors fees to Persons who are not otherwise Affiliates of the Company and the granting or performance Company, (iv) transactions effected as part of registration rights;
a Qualified Securitization Transaction, (6v) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof 4.7 hereof, (vi) reasonable fees and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt compensation paid to, and indemnity provided on behalf of, officers, directors, employees or capital stock consultants of the Company or any of Subsidiary as determined in good faith by the Company’s Restricted Subsidiaries where such Person is treated no more favorably than 's Board of Managers or senior management, (vii) the payment of consulting and advisory fees, annual management fees and related expenses to the Principals made pursuant to any financial advisory, financing, underwriting or placement agreement or in respect of other holder investment banking activities, including, without limitation, in connection with acquisitions or divestitures which are approved by the Board of debt or capital stock Managers of the Company or such Restricted Subsidiary in good faith, (viii) any agreement as in effect on the date of this Indenture 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 date of this Indenture, (ix) payments or loans to employees or consultants which are approved by the Board of Managers of the Company’s Restricted Subsidiaries;
Company in good faith, (8) x) the existence of of, or the performance by the Company or any of the Company’s its Restricted Subsidiaries with any of its obligations under the terms of of, any stockholders agreement (including any registration rights agreement or similar purchase agreement entered into in connection with the ESSI Merger;
(9related thereto) transactions effected pursuant to agreements in effect on which it is a party as of the date of this Indenture and any amendmentsimilar agreements which it may enter into thereafter; provided, modificationhowever, that the existence of, or replacement 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 date of this Indenture shall only be permitted by this clause (so long as x) to the amendment, modification extent that the terms of any such amendment or replacement is new agreement are not materially more otherwise disadvantageous to the Holders of the NotesNotes in any material respect, taken as a whole(xi) transactions with customers, as determined by 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 good faith determination of the Board of Directors Managers of the Company);
Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (10xii) payments made in fulfillment the case of foreign joint ventures, transfers of equipment for sale outside of North America in exchange for value not less than the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series 's cost of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceproducing such equipment.
Appears in 2 contracts
Sources: Indenture (Alliance Laundry Holdings LLC), Indenture (Alliance Laundry Holdings LLC)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as the Company delivers to the fairness to the Company or such Subsidiary of Trustee a written opinion that such Affiliate Transaction Transaction(s) is fair, from a financial point of view view, to the Company and its Restricted Subsidiaries, taken as a whole, or that such Affiliate Transaction(s) is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a person who is not an Affiliate, in either such case issued by an independent 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 4.11(a):paragraph (a) of this Section:
(1) any employment or severance agreement or other employee compensation agreement, employee benefit arrangement or plan, officer and director indemnification agreement, consulting agreement or any similar arrangement amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among any of the Parent, the Direct Parent, the Company and/or and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, owns an Equity Interest in such Person;
(4) the payment of reasonable directors’ fees, payments, the payments of other reasonable benefits and the provision of officers’ and directors’ indemnification and insurance to the extent permitted by law to persons who are officers and directors of the Parent or its Subsidiaries and the Company and its Restricted Subsidiaries and who are not otherwise Affiliates of the Company, in each case in the ordinary course of business and approved by the Board of Directors of the Company;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) transactions among the Company, its Restricted Payments Subsidiaries and Energy XXI Services, Inc. (“Services”), a wholly-owned subsidiary of Parent and a sister company of the Direct Parent and the Company relating to the provision of employment, administrative and related services by Services pursuant to the Cost Allocation Agreement in effect on the Issue Date among the Company, certain Subsidiaries and Services, as such agreement may be amended, modified or supplemented from time to time provided that do any such amendment, modification or supplement will not violate be materially adverse to the provisions Company or the Restricted Subsidiaries compared to the terms of Section 4.07 hereof and Permitted Investments;such agreement in effect on the Issue Date; and
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected Payments that are permitted pursuant to agreements in effect on the date of this Indenture and any amendmentSection 4.07 hereof, modification, or replacement including Permitted Payments to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceParent Companies.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate involving aggregate consideration in excess of $10.0 million (each of the Company (each foregoing, an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 100.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement severance or termination agreement, or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) 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 between or among the Company solely because and/or its Restricted Subsidiaries with Ball Asia Pacific and Permitted Joint Ventures on terms that are no less favorable to the Company owns, directly or through and/or such Subsidiary than those that would have been obtained in a Restricted Subsidiary, comparable transaction by the Company and/or such Subsidiary with an Equity Interest in such unrelated Person;
(4) payment any sale or other issuance of reasonable directors’ feesEquity Interests, other than Disqualified Stock, to Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments and Investments that do not violate the provisions of Section 4.07 hereof hereof;
(6) fees and Permitted Investmentscompensation paid to members of the Board of Directors of the Company and its Restricted Subsidiaries in their capacity as such;
(7) if such Affiliate Transaction is with any Person solely advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in its capacity as a holder the ordinary course of debt business;
(8) fees and compensation paid to, and indemnity provided on behalf of, officers, directors or capital stock employees of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s its Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Company or of any such Restricted Subsidiary, to the extent such fees and compensation are reasonable and customary;
(9) transactions effected as part of a Qualified Securitization Transaction;
(10) payments made in fulfillment the grant of stock options or similar rights to officers, employees, consultants and directors of the Company’s obligations arising in connection with Company and, to the ESSI Merger;extent otherwise permitted under this Supplemental Indenture, to any Restricted Subsidiary, pursuant to plans approved by the Board of Directors of the Company and issuance of securities pursuant thereto; and
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsany arrangement, agreements contract or other arrangements agreement in existence on the date hereof of this Supplemental Indenture, as such arrangement may be amended or restated, renewed, extended, refinanced, refunded or replaced from time to time, provided that any such amendment or restatement, renewal, extension, refinancing, refund or replacement is on terms and consistent with past practiceconditions not materially less favorable to the Company or its Restricted Subsidiaries taken as a whole than the arrangement, contract or agreement in existence on the date of this Supplemental Indenture.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each Affiliate, each, an “"Affiliate Transaction”), ," unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, or, to the extent not denominated in U.S. dollars, the U.S. dollar equivalent thereof, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 15.0 million, or, to the extent not denominated in U.S. dollars, the U.S. dollar equivalent thereof, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national international standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreementemployment, employee benefit plan, officer and director indemnification agreement, consulting service or termination agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 ownsowns Share Capital in, directly or through a Restricted Subsidiarycontrols, an Equity Interest in such Person;
(4) payment sales or issuances of reasonable directors’ feesShare Capital, other than Disqualified Shares, to Affiliates or employees of the Company or its Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do are not violate prohibited by the provisions of Section 4.07 hereof and Permitted Investments;
(76) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock reasonable and customary fees and compensation paid to, and indemnity provided on behalf of, officers, directors and employees of the Company or any Subsidiary of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Company or of any such Subsidiary;
(7) advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;
(8) transactions with customers, joint venture partners, clients and suppliers, 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 any of its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or such Restricted Subsidiary;
(9) transactions effected as part of a Qualified Receivables Transaction or in connection with factoring or other receivables financing transactions on the part of a Non-Guarantor Subsidiary; and
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsany arrangement, agreements contract or other arrangements agreement in existence on the date hereof and consistent with past practiceof this Indenture.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will Polypore shall not, and will shall not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to occur any payment totransaction or series of related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any Affiliate of the Company its Affiliates involving aggregate consideration in excess of $3,000,000 (each an “Affiliate Transaction”), unless:
other than 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 Polypore; provided, however, that for a transaction or series of related transactions with an aggregate value of $10,000,000 or more, at Polypore’s option, either: (1i) a majority of the disinterested members of the Board of Directors of Polypore shall determine in good faith that such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would might reasonably have been obtained in a comparable transaction by the Company at such time on an arm’s-length basis from a Person that is not an Affiliate of Polypore, or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in of Polypore or any such Subsidiary party to such Affiliate Transaction shall have received an Officers’ Certificate certifying opinion from a nationally recognized investment banking, appraisal or accounting firm that such Affiliate Transaction complies is either fair, from a financial standpoint, to Polypore and its Subsidiaries or is on terms 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 Polypore; and provided, further, that for an Affiliate Transaction with this Section 4.11(a) and an aggregate value of $20,000,000 or more the Board of Directors of Polypore or any such Subsidiary party to such Affiliate Transaction shall have received a written opinion from a nationally recognized investment banking, appraisal or accounting firm that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionis either fair, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point standpoint, to Polypore and its Subsidiaries or is on terns 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 view issued by an accounting, appraisal or investment banking firm of national standingPolypore.
(b) The following items will restrictions set forth in Section 6.7(a) hereof shall not be deemed apply to: (i) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of Polypore or any Subsidiary of Polypore as determined in good faith by Polypore’s Board of Directors or senior management; (ii) transactions exclusively between or among Polypore and any of its Subsidiaries or any entity that becomes a Subsidiary as a result of such transaction (other than a Securitization Entity) or exclusively between or among such Subsidiaries or any entity that becomes a Subsidiary as a result of such transaction, provided that such transactions are not otherwise prohibited by this Agreement; (iii) any agreement as in effect as of the Restatement Effective Date and described on Schedule 6.7 or any amendment thereto or any transaction contemplated thereby (including pursuant to be Affiliate Transactions and, therefore, will any amendment thereto) or by any replacement agreement thereto so long as any such amendment or replacement agreement is not be subject more disadvantageous to the provisions Lenders in any material respect than the original agreement as in effect on the Restatement Effective Date as determined in good faith by the Board of Directors of Polypore; (iv) Restricted Payments or Investments (other than Investments made pursuant to Section 4.11(a):
6.4(l)) permitted by this Agreement; (1v) any employment agreement, employee benefit plan, officer and director indemnification agreementtransactions effected as part of a Qualified Securitization Transaction; (vi) the payment of customary annual management, consulting and advisory fees and related expenses to the Permitted Investors and their Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement or any similar arrangement entered into in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which are approved by the Company Board of Directors of Polypore or such Subsidiary in good faith; (vii) payments or loans allowed by law to employees or consultants that are approved by the Board of Directors of Polypore in good faith; (viii) sales of Qualified Capital Stock; (ix) the existence of, or the performance by Polypore or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any 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 Restatement Effective Date and any stockholders similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by Polypore or any of its Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into in connection with after the ESSI Merger;
Restatement Effective Date shall only be permitted by this clause (9ix) transactions effected pursuant to agreements in effect on the date extent that the terms of this Indenture and any amendment, modification, such amendment or replacement to such new agreement (so long as the amendment, modification or replacement is are not materially more disadvantageous to the Holders Lenders in any material respect; (x) transactions permitted by, and complying with, the provisions of Section 6.5; (xi) any issuance of securities or other payments, awards, grants in cash, securities or otherwise pursuant to, or the Notesfunding of, taken as a wholeemployment arrangements, as determined stock options and stock ownership plans approved by the Board of Directors of Polypore; (xii) transactions in which Polypore or any Subsidiary delivers to the Company);
Administrative Agent a letter from a nationally recognized investment banking, appraisal or accounting firm stating that such transaction is fair to Polypore or such Subsidiary from a financial point of view; and (10xiii) payments made transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in fulfillment each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Polypore or the Subsidiaries, in the reasonable determination of the Company’s obligations arising in connection with members of the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction Board of Directors of Polypore, which determinations shall be conclusive, or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence are on the date hereof and consistent with past practiceterms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party.
Appears in 1 contract
Sources: Credit Agreement (Polypore, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2b) the Company delivers to the Trustee:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5 million, a resolution of the Board of Directors set forth in an the Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 15 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) . The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1a) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and consistent with the past practice of the Company or such Restricted Subsidiary;
(2b) indemnification agreements permitted by law entered into by the Company or any of its Restricted Subsidiaries with any of its Affiliates who are directors, employees or agents of the Company or any of its Restricted Subsidiaries;
(c) transactions (including a merger) 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 Equity Interest in such Person;
(4d) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company directors fees to Persons who are not otherwise Affiliates of the Company and the granting or performance of registration rights;Company; and
(6e) Restricted Payments that do not violate the provisions of are permitted by Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice4.08.
Appears in 1 contract
Sources: Indenture (Mail Well Inc)
Transactions with Affiliates. (a) The Company Premier will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company a Premier (each each, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:.
(1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Premier or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by Premier or the Company or such relevant Restricted Subsidiary with an unrelated Person; and
(2b) the Company Premier delivers to the Trustee:
Holders: (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate officers' certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) SECTION 7.7 and that such Affiliate Transaction has been approved unanimously by a majority of the disinterested members of the Board of Directors; and
and (Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of the Notes of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(bc) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):this SECTION 7.7:
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting or employment agreement or any similar arrangement entered into by the Company Premier or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company Premier and/or its Restricted Subsidiaries;
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyPremier) that is an Affiliate of the Company Premier solely because the Company Premier owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable directors’ fees' fees to Persons who are not otherwise Affiliates of Premier;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company Premier to Affiliates of the Company and the granting or performance of registration rights;Premier; and
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date 7.6 of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceAgreement.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 15.0 million, an opinion as the Company delivers to the fairness to the Company or such Subsidiary of Trustee a written opinion that such Affiliate Transaction Transaction(s) is fair, from a financial point of view view, to the Company and its Restricted Subsidiaries, taken as a whole, or that such Affiliate Transaction(s) is not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a person who is not an Affiliate, in either such case issued by an independent accounting, appraisal or investment banking firm of national recognized standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) any employment or severance agreement or other employee or director compensation agreement, employee benefit arrangement or plan, officer and director indemnification agreement, consulting agreement or any similar arrangement amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among any of the Company and/or and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, owns an Equity Interest in such Person;
(4) the payment of reasonable directors’ fees, payments, the payments of other reasonable benefits and the provision of officers’ and directors’ indemnification and insurance to the extent permitted by law to persons who are officers and directors of the Company and its Restricted Subsidiaries, in each case in the ordinary course of business and approved by the Board of Directors;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) transactions pursuant to any agreement in effect on the Issue Date, as such agreement may be amended, modified or supplemented from time to time provided that any such amendment, modification or supplement will not be materially adverse to the Company or the Restricted Subsidiaries compared to the terms of such agreement in effect on the Issue Date; and
(7) Permitted Investments or Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice4.07.
Appears in 1 contract
Sources: Indenture (Windstar Energy, LLC)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, enter into or permit to exist any payment totransaction (including the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets fromthe rendering of any management, consulting, investment banking, advisory or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, other services) with any Affiliate of the Company (each an “Affiliate Transaction”), unlessexcept:
(1a) the performance of any agreements as in effect as of the Closing Date or the consummation of any transaction contemplated thereby (including pursuant to any amendment thereto so long as any such Affiliate Transaction amendment is on not disadvantageous to the Holders of the Notes in any material respect);
(b) transactions (i) the terms that of which are not materially less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been be obtained in a comparable arm’s length transaction by with a Person that is not an Affiliate of the Company or such Restricted Subsidiary and (ii) with an unrelated Person; and
(2) respect to which the Company delivers to the Trustee:
Trustee (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million25,000,000, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors of the Company, and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million50,000,000, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction to the Company from a financial point of view issued by an accounting, appraisal or investment banking firm Independent Qualified Party; Table of national standing.Contents
(bc) The following items will not be deemed payment of customary compensation to be Affiliate Transactions andofficers, thereforeemployees, will not be subject consultants and investment bankers for services actually rendered to the provisions of Section 4.11(a):Company or such Restricted Subsidiary, including indemnity;
(1d) any employment agreementpayment of director’s fees plus expenses and customary indemnification of directors;
(e) the payment of the fees, employee benefit plan, officer expenses and director indemnification agreement, consulting agreement or any similar arrangement entered into other amounts payable by the Company or any of and its Restricted Subsidiaries in connection with the ordinary course offering of businessthe Notes;
(2f) Restricted Payments permitted by Section 5.02 and Permitted Investments;
(g) transactions (including a mergerx) between or among the Company and its Restricted Subsidiaries, (y) between or among the Restricted Subsidiaries and (z) between or among the Company and/or its Restricted SubsidiariesSubsidiaries pursuant to a Centralized Cash Management System;
(3h) transactions with a Person (other than an Unrestricted Subsidiary any licensing agreement or similar agreement entered into in the Ordinary Course of Business relating to the use of technology or intellectual property between any of the Company) that Company and its Subsidiaries, on the one hand, and any company or other Person which is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) its Subsidiaries by virtue of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments fact that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of its Subsidiaries has made an Investment in or owns any Capital Stock of such company or other Person, on the Company’s Restricted Subsidiaries where such Person other hand, which is treated no more favorably than any other holder of debt or capital stock of fair to the Company or any its Restricted Subsidiaries, in the reasonable determination of the Company’s Restricted SubsidiariesBoard of Directors, or is on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(8) i) the existence issuance of payments, awards or grants, in cash or otherwise, pursuant to, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentfunding of, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined employment arrangements approved by the Board of Directors of the Company in good faith and customary loans and advances to employees of the Company), or any Restricted Subsidiary of the Company to the extent otherwise permitted in this Indenture;
(10j) payments made in fulfillment sales, contributions, conveyances and other transfers of Receivables and related assets of the Company’s obligations arising type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary or any other similar transactions in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedany Qualified Receivables Transaction; and
(12k) a transaction transactions permitted under the indenture governing the 7% Notes or series the 8¼% Notes. Table of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.Contents
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant its Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a 69 77 comparable transaction by the Company or such its Restricted Subsidiary with an unrelated Person; Person and
(2ii) the Company delivers to the Trustee:
(A) Trustee with respect to any Affiliate Transaction or any series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 25 million, :
(A) a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such the Affiliate Transaction complies with this Section 4.11(a) 4.12 and that such the Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors or, in the absence of any disinterested members of the Board of Directors, by all members of the Board of Directors; andor
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary the relevant Restricted Subsidiary, as the case may be, of such the Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm a nationally recognized expert in evaluating the fairness of national standingsuch transactions.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a4.12(a):
(1i) any employment agreement, employee benefit plan, officer and director or indemnification agreement, consulting agreement or any similar arrangement employee or director loan, compensation or benefit arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company and/or or its Restricted SubsidiariesSubsidiaries on the one hand, and Enron and its Affiliates on the other hand under agreements described in the Offering Memorandum, and any extension, renewal or modification thereof, provided that the extension, renewal or modification is not materially less favorable to Holders of Notes than under the agreement so described;
(3iii) 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 such Personpermitted by Section 4.08;
(4iv) payment payments of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company ' fees to Persons who are not otherwise Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12v) any transaction between the Company and a transaction Restricted Subsidiary or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements Joint Venture or other arrangements in existence on the date hereof between a Restricted Subsidiary and consistent with past practiceanother Restricted Subsidiary or Joint Venture.
Appears in 1 contract
Sources: Indenture (Azurix Corp)
Transactions with Affiliates. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit ofof any of its Affiliates or any officer, any Affiliate director or employee of the Company Borrower or any Subsidiary (each an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction is on terms that which are not materially no less favorable to the Company Borrower or the relevant Restricted such Subsidiary, taken as a wholethe case may be, than those that would have been obtained be available in a comparable transaction by the Company or such Restricted Subsidiary transition with an unrelated Person; and
unaffiliated third party and (2ii) the Company delivers to the Trustee:
(A) with respect to any if such Affiliate Transaction (or series of related Affiliate Transactions involving Transactions) involves aggregate payments or the transfer of other consideration between the Borrower or any of its Subsidiaries and an Affiliate having a Fair Market Value in excess of $15.0 million3,000,000, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) is in writing and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board board of Directors; and
(B) directors of the Borrower shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with respect the foregoing provisions. In addition, prior to the consummation of any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or the transfer of other consideration between the Borrower or any of its Subsidiaries and an Affiliate having a Fair Market Value in excess of $25.0 million10,000,000, an opinion other than sales or purchases of commodities at prices and on terms at least as favorable to the fairness Borrower as then prevailing in the market, the Borrower will deliver to the Company or such Subsidiary Lenders a written opinion from an independent financial advisor stating that the terms of such Affiliate Transaction Transactions are fair from a financial point of view issued by an accountingview, appraisal to the Borrower or investment banking firm such Subsidiary, as the case may be. The foregoing provisions of national standing.
this Section shall not apply to (a) transactions between or among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate, (b) The following items will not be deemed to be Affiliate Transactions andany Restricted Payment permitted by Section 6.06, therefore, will not be subject to (c) transactions with any officer or director of the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement Borrower entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business in the nature of compensation (2including employee benefit arrangements) for services rendered, (d) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent listed on Schedule 6.07 and substantially on the terms set forth in such agreements as in existence on the date hereof, (e) transactions pursuant to the Acquisition Documents and (f) Investments permitted under Section 6.04. For purposes of this Section, "Fair Market Value" means, with past practicerespect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm's length free market transaction, for cash, between a willing seller and a willing and able buyers, neither of which is under any compulsion to complete the transaction; provided, however, that the Fair Market Value of any such asset or assets shall be determined conclusively by the board of directors of the Borrower acting in good faith, and shall be evidenced by resolutions of the board of directors of the Borrower delivered to the Administrative Agent.
Appears in 1 contract
Transactions with Affiliates. (a) The Company Except as expressly permitted by this Agreement, none of the Borrowers will, nor will not, and will not it permit any of its Restricted Subsidiaries to, directly or indirectly: (a) make any payment toInvestment in an Affiliate except for Investments permitted under Section 8.08(h), provided that, the monetary or business consideration arising therefrom would be substantially as advantageous to a Borrower and its Subsidiaries as the monetary or business consideration that would obtain in a comparable transaction with a Person not an Affiliate; (b) transfer, sell, lease, transfer assign or otherwise dispose of any Property to an Affiliate; (c) merge into or consolidate with or purchase or acquire Property from an Affiliate; (d) make any contribution towards, or reimbursement for, any Federal income taxes payable by any shareholder or member of a Borrower or any of its properties Subsidiaries in respect of income of a Borrower; or assets to, or purchase any property or assets from, or (e) enter into any other transaction directly or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, indirectly with or for the benefit ofof an Affiliate (including, without limitation, Guarantees and assumptions of obligations of an Affiliate); provided that
(i) any Affiliate of the Company (each who is an “Affiliate Transaction”), unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken individual may serve as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plandirector, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company employee of a Borrower or any of its Restricted Subsidiaries and receive reasonable compensation for his or her services in such capacity,
(ii) a Borrower and its Subsidiaries may enter into transactions (other than extensions of credit by such Borrower or any of its Subsidiaries to an Affiliate) providing for the leasing of Property, the rendering or receipt of services or the purchase or sale of equipment, programming rights, advertising time and other Property in the ordinary course of business;
(2) transactions (including , or the purchase, sale, exchange or swapping of CATV Systems or portions thereof, if the monetary or business consideration arising therefrom would be substantially as advantageous to such Borrower and its Subsidiaries as the monetary or business consideration that would obtain in a merger) between or among the Company and/or its Restricted Subsidiaries;
(3) transactions comparable transaction with a Person (other than not 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 such Person;Affiliate,
(4iii) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of Borrowers may enter into and perform their respective obligations under, the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentManagement Agreements, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12iv) a transaction or series the Borrowers and their Subsidiaries may pay to the Manager the aggregate amount of transactions involving payments not intercompany shared expenses payable to Mediacom LLC that are allocated by Mediacom LLC and MCC to the Borrowers and their Subsidiaries in excess accordance with Section 5.04 of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof Guarantee and consistent with past practicePledge Agreement.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1a) such the Affiliate Transaction is on terms that are not materially no less favorable (as reasonably determined by the Company) to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2b) the The Company delivers to the Trustee:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million5% of Tangible Assets of any of the Parties to the Affiliate Transaction as of the end of the most recent fiscal quarter (the “Asset Percentage”), a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a8.17(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionthe Asset Percentage, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):8.17(a) hereof:
(1a) any employment agreement or director’s engagement agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness or approved by the relevant Board of Directors;
(2) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(3b) 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, owns an Equity Interest in in, or controls, such Person;
(4c) payment of reasonable directors’ feesfees to Persons who are not otherwise Affiliates of the Company;
(5d) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6e) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely agreement, instrument or arrangement as in its capacity effect as a holder of debt or capital stock of the Company date of this Agreement (including, without limitation, the Support Agreement, the Tax Sharing Agreement and the Management Services Agreement) or any amendment hereto or any transaction contemplated hereby (including pursuant to any amendment hereto) in any replacement agreement hereto so long as any such amendment or replacement agreement is not more disadvantageous to the holders of the Company’s Restricted Subsidiaries where such Person is treated no more favorably Bonds in any material respect than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar original agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements as in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, Issue Date hereof as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12f) any pro rata distribution (including a rights offering) to all holders of a class of Equity Interests or Indebtedness of the Company, including Persons who are Affiliates of the Company; and
(g) any transaction or series involving sales of transactions involving payments not gas, electric capacity, energy, ancillary services, transmission services and products, steam, emissions credits, fuel, fuel transportation and fuel storage in excess the ordinary course of $5.0 million made pursuant business on terms that are no less favorable (as reasonably determined by the Company) to contracts, agreements or other arrangements the Company than those that would have been obtained in existence on a comparable transaction by the date hereof and consistent Company with past practicean unrelated Person.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Borrower (each each, an “"Affiliate Transaction”"), unless:
(1i) such the Affiliate Transaction Transaction, taken as a whole with all other related Affiliate Transactions, is on terms that are not materially no less favorable to the Company or the relevant Restricted SubsidiaryBorrower and its Subsidiaries, taken as a whole, than those that would have been obtained in a comparable transaction by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company Borrower delivers to the Trustee:Administrative Agent (other than with respect to a Shared Facilities Arrangement between or among only the Borrower and/or any of its Subsidiaries):
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million10,000,000 but less than or equal to $25,000,000, a resolution of the Board of Directors set forth in an Officers’ Officer's Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 5.08 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million25,000,000, an a positive opinion as to the fairness to the Company or such Subsidiary Fair Market Value of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a5.08(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company Borrower and/or its Restricted Subsidiariesany of the Guarantors (other than Shared Facilities Arrangements);
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company Borrower (but not a Subsidiary of the Borrower) solely because the Company Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable directors’ fees' fees to Persons who are not otherwise Affiliates of the Borrower;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company Borrower to Affiliates of the Company and Borrower; provided that such Equity Interests are included in the granting or performance of registration rightsCollateral;
(6vi) Restricted Payments that do not violate the provisions of this Agreement as described in Section 4.07 hereof and Permitted Investments5.04 (Restricted Payments);
(7vii) if such Affiliate Transaction is with loans or advances to employees in the ordinary course of business not to exceed $1,000,000 in the aggregate at any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariesone time outstanding;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Mergerviii) Permitted Tax Payments;
(9ix) transactions effected under or pursuant to written agreements with Affiliates of the Borrower in effect on place as of the date of this Indenture and Agreement or any amendmentamendment or modification thereto, modification, or replacement to such agreement (so long as any such amendment or modification meets the requirements of clause (x) or (xi) of this Section 5.08(b);
(x) any amendments or modifications of, or waivers under, any written agreement described under clause (ix) of this 5.08(b) that is not a Major Project Document; provided that no such amendment, modification or replacement waiver alters any such agreement in a manner than is not materially more disadvantageous adverse to the Holders interests of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Lenders;
(10xi) payments made any amendments or modifications of, or waivers under, any Major Project Document, which are permitted by Section 5.10(b) (Business Activities) and are on terms that are no less favorable to the Borrower or its relevant Subsidiary (as certified to the Administrative Agent in fulfillment of an Officer's Certificate) than those that would have been obtained in a comparable transaction by the Company’s obligations arising in connection Borrower or such Subsidiary with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedan unrelated Person; and
(12xii) a transaction or series any agreement to do any of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.foregoing,
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Delta Energy Center, LLC)
Transactions with Affiliates. (a) The Company will shall not, ---------------------------- and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
(1i) such Affiliate Transaction is on terms that that, taken as a whole, are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company delivers to the Trustee:
Trustee (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions entered into after the first Issue Date involving aggregate consideration in excess of $15.0 3.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate Resolution certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accountinginvestment banking, appraisal or investment banking accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(aTransactions):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other 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 such Personcontemplated thereby;
(4) payment of reasonable directors’ fees;
any payments to Investcorp and its Affiliates (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to whether or not such Persons are Affiliates of the Company and the granting Company) (A) for any financial advisory, financing, underwriting or performance placement services or in respect of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person other investment banking activities, which relate solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance to transactions actually consummated by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into Subsidiaries, including in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentacquisitions or divestitures, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined which payments are approved by the Board of Directors of the Company);
Company in good faith, provided that the amount of such payments under this clause (10A) in any year in respect of one or more transactions under the Threshold (as herein defined) shall not exceed $2.0 million and (B) of annual management, consulting and advisory fees and related expenses, which payments are made after August 1, 2003, except to the extent such fees under this clause (B) exceed $750,000 in fulfillment any 12-month period; for the purposes of the Company’s obligations arising foregoing clause (A), the term "Threshold" means, in connection with respect of any transaction described therein that is (x) an acquisition or divestiture effected by the ESSI MergerCompany or any of its Subsidiaries of any business, enterprise or line of business, $15.0 million measured by reference to the value ascribed to such business, enterprise or line of business in such transaction, or (y) an Investment by or in the Issuer or any of its Subsidiaries, $15.0 million measured by reference to the amount actually invested;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will and Bastet/Mission shall not, and will shall not permit any of its the Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1a) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2b) the Company delivers to the Trustee:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 1.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 7.5 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) . The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1a) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its the Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary;
(2b) transactions (including a merger) between or among the Company and/or its the Restricted Subsidiaries;
(3c) transactions with a Person (other than an Unrestricted Subsidiary loans, advances, payment of reasonable fees, indemnification of directors, or similar arrangements to officers, directors, employees and consultants who are not otherwise Affiliates 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 such Person;
(4d) payment of reasonable directors’ fees;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(e) transactions under any contract or agreement in effect on the date hereof as the same may be amended, modified or replaced from time to time so long as any amendment, modification, or replacement is no less favorable to the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt the contract or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements as in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedIndenture; and
(12f) a transaction or series Permitted Investments and Restricted Payments that are permitted by the provisions of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicethis Indenture described under Section 4.07.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 7.5 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a4.11(a)(1) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 37.5 million, an opinion as to that the fairness terms of such transaction are not materially less favorable to the Company or and the Restricted Subsidiaries than those that would reasonably be expected to have been obtained in a comparable transaction at such Subsidiary of such Affiliate Transaction from a financial point of view time on an arm’s-length basis issued by an accounting, appraisal or investment banking firm of national standingstanding that is not an Affiliate of the Company or the Restricted Subsidiaries.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ feesfees to, and indemnity provided on behalf of, officers, directors or employees of the Company or any Restricted Subsidiary;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) Restricted Payments and Permitted Investments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentshereof;
(7) if such Affiliate Transaction is with transactions between or among the Company and/or its Restricted Subsidiaries on the one hand and a Receivables Entity on the other hand, or transactions between a Receivables Entity and any Person solely in its capacity which the Receivables Entity has an Investment, in each case effected as part of a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;Qualified Receivables Transaction; and
(8) the existence of loans or the performance advances to employees by the Company or any of the Company’s its Restricted Subsidiaries with any in the ordinary course of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicebusiness.
Appears in 1 contract
Sources: Indenture (Georgia Gulf Corp /De/)
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or 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 $5.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would could have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
Trustee (A) 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 approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 50.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof
(1) Transactions between or among the Issuer and/or any of the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 4.07 hereof and the definition of “Permitted Investments;”
(3) so long as no Default or Event of Default shall have occurred or is continuing or shall result therefrom, the payment of (A) customary management, consulting and monitoring and advisory fees to the Sponsors in an aggregate amount in any fiscal year not to exceed $5,000,000 plus all reasonable out-of-pocket expenses and customary indemnities related to any such activities and (B) one-time termination fee approved by a majority of the Board of Directors of the Issuer in good faith payable to the Sponsors upon a Change of Control or a public Equity Offering;
(4) the payment of customary fees paid to, and indemnities provided on behalf of, officers, directors, managers, employees or consultants of the Issuer, any of its direct or indirect parent corporations or any Restricted Subsidiary;
(5) so long as no Default or Event of Default shall have occurred or is continuing or shall result therefrom, payments by the Issuer or any Restricted Subsidiary to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by the Issuer in good faith;
(6) transactions in which the Issuer 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 Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its 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;
(7) payments or loans (or cancellation of loans) to employees or consultants of the Issuer, any of its direct or indirect parent corporations or any Restricted Subsidiary and employment agreements, stock option plans and other compensatory arrangements which are, in each case, approved by a majority of the Issuer in good faith;
(8) any agreement, employee benefit planinstrument or arrangement as in effect as of the Issue Date, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into amendment thereto (so long as any such amendment is not disadvantageous to the holders in any material respect as reasonably determined by the Company Issuer);
(9) 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 limited liability company 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 Issuer 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 amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect;
(10) the Transactions and the payment of all fees and expenses related to the Transactions, in each case as disclosed in the Offering Circular;
(11) transactions with easterners, financial advisors, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and the Restricted Subsidiaries, in the reasonable determination of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(212) transactions (including a merger) between sales of accounts receivable, or among the Company and/or its Restricted Subsidiaries;participations therein, in connection with any Receivables Facility; and
(313) 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 such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company Issuer to Affiliates of the Company and the granting any Permitted Holder or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with to any Person solely in its capacity as a holder of debt director, manager, officer, employee or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceconsultant.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into, renew or extend any payment totransaction or arrangement including the purchase, sale, lease or exchange of property or assets, or sell, lease, transfer or otherwise dispose the rendering of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, service with any Affiliate of the Company or any Restricted Subsidiary (each an a “Affiliate Related Party Transaction”), unless:
(1) such Affiliate Transaction is on involving payments or consideration in excess of $7.5 million except upon fair and reasonable terms that taken as a whole are not materially no less favorable to the Company or the Restricted Subsidiary than could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company.
(b) Any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $15.0 million must first be approved by a majority of the relevant Board of Directors who are disinterested in the subject matter of the transaction pursuant to a board resolution delivered to the Trustee.
(c) The foregoing Sections 4.13(a) and (b) do not apply to:
(1) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries of the Company;
(2) the payment by the Company or one of its Restricted Subsidiaries of reasonable and customary regular fees and compensation to, and reasonable and customary indemnification arrangements and similar payments on behalf of, directors of the Company or any Restricted Subsidiary who are not employees of the Company or such Restricted Subsidiary;
(3) any Restricted Payments permitted by Section 4.09 hereof and any Permitted Investment;
(4) transactions or payments, including the award of securities, pursuant to any employee, officer or director compensation or benefit plans or arrangements by the Company or a Restricted Subsidiary entered into in the ordinary course of business, or approved by the Board of Directors of the Company or the applicable Restricted Subsidiary;
(5) transactions pursuant to any contract or agreement in effect on the Issue Date, as amended, modified or replaced from time to time so long as the terms of the amended, modified or new agreements, taken as a whole, are no less favorable to the Company and any applicable Restricted Subsidiary than those that would have been obtained in effect on the date of this Indenture as determined by the Company in good faith;
(6) the entering into of a comparable customary agreement providing registration rights to the direct or indirect stockholders of the Company or any Restricted Subsidiary and the performance of such agreements;
(7) the issuance of Equity Interests (other than Disqualified Equity Interests) of the Company or a Restricted Subsidiary to any Person or any transaction with an Affiliate where the only consideration paid by the Company or any Restricted Subsidiary is Equity Interests (other than Disqualified Equity Interests) of the Company or such Restricted Subsidiary with an unrelated Person; andor any contribution to the capital of the Company or a Restricted Subsidiary;
(2) 8) the entering into of any tax sharing agreement or arrangement or any other transactions undertaken in good faith for the sole purpose of improving the tax efficiency of transactions among the Company delivers to the Trustee:and its Restricted Subsidiaries;
(A) transactions with respect customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, (B) transactions with joint ventures entered into in ordinary course of business or (C) any Affiliate Transaction management services or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies support agreement entered into on terms substantially consistent with this Section 4.11(a) and that such Affiliate Transaction has been past practice or approved by a majority of the Board of Directors of the Company or the applicable Restricted Subsidiary (in each case, including a majority of the disinterested directors) in good faith;
(10) transactions (including the CIG Sale) permitted by, and complying with, the provisions of Section 5.01 hereof, or any merger, consolidation or reorganization of the Company or a Restricted Subsidiary with an Affiliate, solely for the purposes of reincorporating the Company or such Restricted Subsidiary in a new jurisdiction;
(a) transactions between the Company or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or more of its directors is also a director of the Company or the Restricted Subsidiary; provided that such director abstains from voting as a director of the Company or the Restricted Subsidiary on any matter involving such other Person, (b) transactions entered into with any of the Company’s or its Restricted Subsidiaries or Affiliates for shared services, facilities and/or employee arrangements entered into on commercially reasonable terms (as determined in good faith by the Company or the applicable Restricted Subsidiary), (c) transactions between the Company and any of its Affiliates that is (i) not a Subsidiary of the Company and (ii) is an Affiliate solely because the Company (A) directly or indirectly holds Equity Interests in such Person and/or (B) the Company employees, acting in such capacity, are on the board of, or act in a management capacity with respect to, such Person or (d) transactions between the Company or any of its Restricted Subsidiaries and any Person that is an Affiliate solely because such Person or any of its Affiliates directly or indirectly holds Equity Interests in, is a director of or otherwise acts in a management capacity with respect to, one or more of the Company’s Restricted Subsidiaries;
(12) payments by the Company or any Restricted Subsidiary to any Affiliate for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are on arms’-length terms and are approved by a majority of the members of the Board of DirectorsDirectors of the Company or the applicable Restricted Subsidiary (in each case, including a majority of the disinterested directors) in good faith;
(13) any transaction pursuant to which any Affiliate provides the Company and/or its Subsidiaries, at cost, with services, including services to be purchased from third-party providers, such as legal and accounting, tax, consulting, financial advisory, corporate governance, insurance coverage and other services, which transaction is approved by a majority of the members of the Board of Directors of the Company or the applicable Restricted Subsidiary (in each case, including a majority of the disinterested directors) in good faith;
(14) the entering into of customary investment management contracts between an Affiliate and any Restricted Subsidiary of the Company that, in the ordinary course of its business, makes Investments in private collective investment vehicles (including private collective investment vehicles other than those owned by such Affiliate), which investment management contacts are entered into on commercially reasonable terms and approved by a majority of the members of the Board of Directors of the Company or the applicable Restricted Subsidiary (in each case, including a majority of the disinterested directors) in good faith; and
(B15) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration transactions in excess of $25.0 million, an opinion as to the fairness to which the Company or such Subsidiary of such Affiliate Transaction any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed standing stating that such transaction is fair to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any such Restricted Subsidiary from a financial point of its Restricted Subsidiaries in view or meets the ordinary course requirements of business;
clause (2a) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceabove.
Appears in 1 contract
Sources: Indenture (Hc2 Holdings, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10 million, a resolution of the Board of Directors of the Company set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 50 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):) hereof:
(1) any employment agreementemployment, employee benefit plan, officer and director indemnification agreement, consulting severance or termination agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 between or among the Company solely because and/or its Restricted Subsidiaries with Ball Asia Pacific and Permitted Joint Ventures on terms that are no less favorable to the Company owns, directly or through and/or such Subsidiary than those that would have been obtained in a Restricted Subsidiary, comparable transaction by the Company and/or such Subsidiary with an Equity Interest in such unrelated Person;
(4) payment any sale or other issuance of reasonable directors’ feesEquity Interests, other than Disqualified Stock, to Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company Restricted Payments that are permitted by and the granting or performance of registration rightsInvestments that are not prohibited by Section 4.07 hereof;
(6) Restricted Payments that do not violate advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the provisions ordinary course of Section 4.07 hereof and Permitted Investmentsbusiness;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt fees and compensation paid to, and indemnity provided on behalf of, officers, directors or capital stock employees of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s its Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Company or of any such Restricted Subsidiary, to the extent such fees and compensation are reasonable and customary;
(8) transactions effected as part of a Qualified Securitization Transaction;
(9) the grant of stock options or similar rights to officers, employees, consultants and directors of the Company and, to the extent otherwise permitted under this Indenture, to any Restricted Subsidiary, pursuant to plans approved by the Board of Directors of the Company and issuance of securities pursuant thereto; and
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsany arrangement, agreements contract or other arrangements agreement in existence on the date hereof of this Indenture, as such arrangement may be amended or restated, renewed, extended, refinanced, refunded or replaced from time to time, provided that any such amendment or restatement, renewal, extension, refinancing, refund or replacement is on terms and consistent with past practiceconditions not materially less favorable to the Company or its Restricted Subsidiaries taken as a whole than the arrangement, contract or agreement in existence on the date of this Indenture.
Appears in 1 contract
Sources: Indenture (Ball Corp)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment todirectly or indirectly, or sell, lease, transfer transfer, or otherwise dispose of any of its properties or assets Property to, or purchase any property or assets Property from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance advance, Guarantee or guarantee with, transaction (including the rendering of services) with or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction or series of Affiliate Transactions is (i) in the best interest of the Company or such Restricted Subsidiary and (ii) on terms that are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm's-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated Person; and
Affiliate (2or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company or the relevant Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company has determined to be fair to the Company or the relevant Restricted Subsidiary) and (b) the Company delivers to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration payments in excess of $15.0 million10,000,000 but less than $15,000,000, a resolution certificate of the chief executive, operating or financial officer of the Company evidencing such officer's determination that such Affiliate Transaction or series of Affiliate Transactions complies with clause (a) above and (ii) with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments equal to or in excess of $15,000,000, a Board of Directors set forth in an Officers’ Certificate Resolution certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction or series of Affiliate Transactions has been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors; and
(B) , provided that, in the -------- event that there shall not be at least two disinterested members of the Board of Directors with respect to any the Affiliate Transaction, the Company shall, in addition to such Board Resolution, file with the Trustee a written opinion from an investment banking firm of national standing in the United States which, in the good faith judgment of the Board of Directors, is independent with respect to the Company and its Affiliates and qualified to perform such task, which opinion 132 shall be to the effect that the consideration to be paid or received in connection with such Affiliate Transaction or series is fair, from a financial point of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionview, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accountingRestricted Subsidiary. Notwithstanding the foregoing, appraisal or investment banking firm of national standing.
(b) The the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business and consistent with industry practice; (2ii) any agreement or arrangement with respect to the compensation of a director or officer of the Company or any Restricted Subsidiary approved by a majority of the disinterested members of the Board of Directors and consistent with industry practice; (iii) transactions (including a merger) between or among the Company and/or and its Restricted Subsidiaries;
(3) transactions with a Person (other , provided that no -------- more than an Unrestricted Subsidiary 5% of the CompanyVoting Stock (on a fully diluted basis) that of any such Restricted Subsidiary is owned by an Affiliate of the Company solely because the Company owns, directly or through (other than a Restricted Subsidiary, an Equity Interest in such Person;
); (4iv) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests Restricted Payments and Permitted Investments permitted by Section 1012 (other than Disqualified Stock) of the Company to Investments in Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do are not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
); (8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under v) transactions pursuant to the terms of any stockholders agreement or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements arrangement as in effect on the date Measurement Date; and (vi) transactions with respect to wireline or wireless transmission capacity, the lease or sharing or other use of cable or fiber optic lines, equipment, rights- of-way or other access rights, between the Company (or any Restricted Subsidiary) and any other Person, provided that, in the case of this Indenture and any amendmentclause -------- (vi), modification, or replacement to such agreement transaction complies with clause (so long as a) in the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceimmediately preceding paragraph.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series Directors of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingCompany.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) any employment agreementemployment, employee benefit planequity award, officer and director indemnification agreement, consulting equity option or equity appreciation agreement or any similar arrangement plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among any of the Company and/or and its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, owns an Equity Interest in such Person;
(4) payment transactions effected in accordance with the terms of reasonable directorsagreements described in the Issuers’ feesoffering memorandum, dated May 24, 2011, under the caption “Related Party Transactions”, as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is no less advantageous to the Company in any material respect than the agreement so amended or replaced;
(5) any issuance customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) sales of Equity Interests (other than Disqualified Stock) to, or receipt of the Company to capital contributions from, Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted InvestmentsCompany;
(7) if such Affiliate Transaction is with any Person solely Permitted Investments or Restricted Payments that are permitted by the provisions of this Indenture in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted SubsidiariesSection 4.07;
(8) payments to the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries General Partner with any of its obligations under the terms of any stockholders or similar agreement entered into respect to reimbursement for expenses in connection accordance with the ESSI Merger;
(9) transactions effected pursuant to agreements Partnership Agreement as in effect on the date of this Indenture and as it may be amended, provided that any amendment, modification, or replacement such amendment is not less favorable to the Company in any material respect than the agreement prior to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(129) a transaction in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing, terminalling or series of transactions involving payments not in excess of $5.0 million made pursuant to otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, agreements any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or other arrangements in existence on the date hereof any Restricted Subsidiary and consistent with past practicethird parties.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”), unless:
(1i) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; andPerson or, if in the good faith judgment of the Company’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view;
(2) the Company delivers to the Trustee:
(Aii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 15 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and either attached to or set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directorsabove; and
(Biii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 30 million, an opinion as the Company delivers to the fairness Trustee (x) a resolution adopted in good faith by the majority of the Board of Directors of the Company, approving such Affiliate Transaction and either attached to or set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and (y) a written opinion of an Independent Financial Advisor stating such Affiliate Transaction complies with clause (i) above.
(b) The provisions of Section 4.07(a) shall not apply to the following:
(i) transactions between or among the Company and/or any of its Restricted Subsidiaries; (ii) (x) Restricted Payments permitted by Section 4.04 and (y) Permitted Investments;
(iii) the payment of customary compensation to, and the provision of customary indemnity and other benefits on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary or any Parent Company;
(iv) payments or loans (or cancellation of loans) to employees or consultants in the ordinary course of business not to exceed $3.0 million in the aggregate at any one time outstanding;
(v) any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders of the Securities in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(vi) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or any executive officer of the Company, and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(vii) any contribution to the capital of the Company or any issuance of Capital Stock of the Company;
(viii) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(ix) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(x);
(x) transactions entered into by a Person prior to the time such Person becomes a Restricted Subsidiary or is merged or consolidated into the Company or a Restricted Subsidiary, so long as such transaction is not entered into in contemplation of such event;
(xi) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm that such transaction meets the requirements of national standing.Section 4.07(a)(i);
(bxii) The following items will not be deemed to be Affiliate Transactions andtransactions permitted by, thereforeand complying with, will not be subject to the provisions of Section 4.11(a):5.01;
(1xiii) transactions between the Company or any of its Restricted Subsidiaries and any Person, 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;
(xiv) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of any Unrestricted Subsidiary in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, (b) pledges of Equity Interests in Unrestricted Subsidiaries and (c) guarantees of the type referred to in Section 4.03(b)(xii)(B);
(xv) advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;
(xvi) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement agreements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2xvii) transactions (including a merger) between the issuances of securities 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 ownspayments, directly awards or through a Restricted Subsidiarygrants in cash, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting securities or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of otherwise pursuant to, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders funding of, employment arrangements, stock option and stock ownership plans or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined employee benefit plans approved by the Board of Directors of the Company);
(10) payments made Company or of a Restricted Subsidiary, as appropriate, in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedgood faith; and
(12xviii) a transaction Permitted Liens of the type described in clause (6)(B) of the definition thereof granted in favor of an MTBE Subsidiary or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicePermitted MTBE Joint Venture.
Appears in 1 contract
Sources: Indenture (TPC Group Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving aggregate consideration in excess of $25.0 million with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1a) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would reasonably be expected to have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series Directors of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionthe Company. Notwithstanding the foregoing, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):the prior paragraph:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement (or any similar arrangement amendment thereto) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary, including the payment of indemnities provided for the benefit of employees party to such employment agreements and the payment of compensation to the officers, directors and employees of the Company and its Restricted Subsidiaries;
(2) transactions (including a merger) 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, owns an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ feesfees and indemnities provided for the benefit of directors;
(5) any issuance issuances or sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) the pledge of Equity Interests of Unrestricted Subsidiaries; and
(7) Permitted Investments and Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicehereof.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will Venture shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Affiliates (each an “Affiliate Transaction”), unless:
: (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Partnership or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Venture or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company Venture delivers to each Partner that is not an Affiliate of the Trusteeparty to the Affiliate Transaction:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million1,000,000, a resolution certificate of the Board of Directors set forth in an Officers’ Certificate certifying Managing Partner to the effect that such Affiliate Transaction complies with this Section 4.11(a) 2.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsManaging Partner; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million5,000,000, an opinion as to the fairness to the Company or such Subsidiary Partnership of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
. The foregoing provisions of this Section 2.13 shall not apply to the following: (a) payments made pursuant to, or any other transactions contemplated by, the Management Agreement; (b) The following items will not purchases of goods and services in the ordinary course of business on terms that are no less favorable to the Venture or its Subsidiaries than would be deemed reasonably expected to be Affiliate Transactions and, therefore, will obtained from an unrelated third party and in an amount not be subject to exceed $______ per year ; (c) transactions between or among the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer Venture and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries Subsidiaries; (d) Additional Capital Contributions or distributions permitted by the terms of this Agreement; and (e) reasonable fees and compensation (including bonuses, retirement plans and securities, stock options and stock ownership plans) paid or issued to and indemnities provided on behalf of officers, directors, employees or consultants of the Venture or any Subsidiary in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2ii) the Company delivers to the Trustee:
Holder (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 1.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 5.0 million, (x) an opinion as to the fairness to the Company or such Subsidiary Holder of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
standing or (by) The following items will with respect to real property, fixed assets or equipment, a written appraisal from a nationally recognized appraiser showing such property to have a value not be deemed less than the amount of such consideration, except with respect to be Affiliate Transactions andtransactions in the ordinary course of business and consistent with past practice between the Company or any of its Restricted Subsidiaries and Box USA Holdings, therefore, will not be subject to the provisions Inc. or any of Section 4.11(a):
its respective subsidiaries; provided that (1) the Agreement of Lease dated as of January 1, 1995, between Dennis Mehiel, as landlord, and the Company, as tenant, relating to ▇▇▇ ▇▇▇▇▇▇▇'s Jacksonville, Florida facility located in Duval County, Florida, viz., (x) Parcel A: Gov't lot 2, ss.13, Town▇▇▇▇ 2 south, Range 25 East and (y) Parcel B: Eas▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇nt, dated August 29, 1979, the portion of which is found at Gov't lot 2, ss.13, Township 2 South, Range 25 east) except for any purch▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ may arise thereunder; (2) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by between any Person and the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among business and consistent with the past practice of the Company and/or its or such Restricted Subsidiaries;
Subsidiary in an amount not to exceed $1.0 million per annum; (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of between or among SF Holdings Group, Inc., Sweetheart Holdings, the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
and its Subsidiaries; (4) payment of reasonable directors’ fees;
any other payments or investments that are permitted by this Agreement; and (5) any issuance provision of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting administrative or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance management services by the Company or any of the Company’s Restricted Subsidiaries with its officers to any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture respective Subsidiaries and any amendment, modification, or replacement Unrestricted Subsidiaries in the ordinary course of business in an aggregate amount not to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made exceed $1.9 million in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
any twelve (12) month period, in each case, shall not be deemed Affiliate Transactions; provided, however, that in the event of a transaction or series Change of transactions involving payments not Control the exception specified in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceSection 4(g)(5) shall be deemed an Affiliate Transaction.
Appears in 1 contract
Sources: Note Purchase Agreement (Sweetheart Holdings Inc \De\)
Transactions with Affiliates. (a) The Company will may not, and will may not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any transaction (or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any series of related transactions) with an Affiliate of the Company (each an “Affiliate Transaction”)or a Restricted Subsidiary, unless:
(1) including any Investment, either directly or indirectly, unless such Affiliate Transaction transaction is on terms that are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been could be obtained in a comparable arm's-length transaction by with an entity that is not an Affiliate and is in the best interests of such Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to Subsidiary. For any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration transaction that involves in excess of $15.0 1 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors of the Company shall determine that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution of the Company filed with the Trustee. For any transaction that involves in excess of $10 million, the Company shall also obtain an opinion from a nationally recognized expert with experience in appraising the terms and conditions of the type of transaction (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess transactions) for which the opinion is required stating that such transaction (or series of $25.0 million, an opinion as to the fairness related transactions) is on terms no less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arm's-length transaction with an entity that is not an Affiliate of such Affiliate Transaction from a financial point of view issued by an accountingthe Company, appraisal or investment banking firm of national standing.
(b) which opinion shall be filed with the Trustee. The following items will foregoing requirements shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):apply to:
(1) any transaction pursuant to agreements in effect on the Closing Date;
(2) any employment agreement, agreement or employee benefit planarrangements with any officer or director, officer and director indemnification agreementincluding under any stock option or stock incentive plans, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and consistent with the past practice of the Company or such Restricted Subsidiary or approved by a majority of the disinterested members of the Board of Directors;
(23) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ feesdirectors fees to Persons who are not otherwise employees of the Company;
(5) any issuance indemnities of Equity Interests (other than Disqualified Stock) officers, directors and employees of the Company to Affiliates or any Subsidiary of the Company and pursuant to bylaws, or statutory provisions or indemnification agreements or the granting purchase of indemnification insurance for any director or performance of registration rightsofficer;
(6) any Restricted Payments Payment that do not violate the provisions of is permitted to be made by Section 4.07 hereof and Permitted Investments;302 hereof; and
(7) if written agreements entered into or assumed in connection with acquisitions of other businesses with persons who were not Affiliates prior to such Affiliate Transaction is with any Person solely transactions. Notwithstanding the foregoing, the requirements set forth in its capacity as a holder of debt or capital stock the third sentence of the Company first paragraph of this Section 308 relating to an opinion from a nationally recognized expert shall not apply to leases of property or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement equipment entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date ordinary course of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicebusiness.
Appears in 1 contract
Sources: First Supplemental Indenture (Group 1 Automotive Inc)
Transactions with Affiliates. (a) The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1i) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Partnership or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Partnership or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company Partnership delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million but less than or equal to $50.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved (either pursuant to specific or general resolutions) by a majority of the disinterested members of the Board of DirectorsDirectors of the General Partner or has been approved by an officer pursuant to a delegation (specific or general) of authority from the Board of Directors of the General Partner; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 50.0 million, (I) a resolution of the Board of Directors of the General Partner set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the General Partner and (II) either (a) an opinion as to the fairness to the Company or such Subsidiary Partnership of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingstanding recognized as an expert in rendering fairness opinions on transactions such as those proposed, (b) with respect to assets classified, in accordance with GAAP, as property, plant and equipment on the Partnership's or such Restricted Subsidiary's balance sheet, a written appraisal from a nationally recognized appraiser showing the assets have a fair market value not less than the consideration to be paid (provided that if the fair market value determined by such appraiser is a range of values or otherwise inexact, the Board of Directors of the General Partner shall determine the exact fair market value, provided that it shall be within the range so determined by the appraiser), (c) in the case of gathering, transportation, marketing, hedging, production handling, operating, construction, storage, platform use, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Partnership or any Restricted Subsidiary and third parties or, if none of the Partnership or any Restricted Subsidiary has entered into a similar contract with a third party, that the terms are no less favorable than those available from third parties on an arm's-length basis, as determined by the Board of Directors of the General Partner or (d) in the case of any transaction between the Partnership or any of its Restricted Subsidiaries and any Affiliate thereof in which the Partnership beneficially owns 50% or less of the Voting Stock and one or more Persons not Affiliated with the Partnership beneficially own (together) a percentage of Voting Stock at least equal to the interest in Voting Stock of such Affiliate beneficially owned by the Partnership, a resolution of the Board of Directors of the General Partner set forth in the Officers' Certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the General Partner. Even though a particular Affiliate Transaction or series of Affiliate Transactions may be covered by two or more of clauses (a) through (d) above, the compliance with any one of such applicable clauses shall be satisfactory.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):
(1i) transactions pursuant to the Management Agreement as in effect on the Issue Date;
(ii) any employment agreementemployment, employee benefit plan, officer and director indemnification agreement, consulting equity option or equity appreciation agreement or any similar arrangement plan entered into by the Company Partnership or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and, as applicable, consistent with the past practice of the Partnership or such Restricted Subsidiary;
(2iii) transactions (including a merger) between or among the Company Partnership and/or its Restricted Subsidiaries;
(3iv) Restricted Payments that are permitted by Section 4.08;
(v) transactions effected in accordance with a Person the terms of agreements as in effect on the Issue Date;
(vi) customary compensation, indemnification and other than an Unrestricted Subsidiary benefits made available to officers, directors or employees of the Company) that is an Affiliate of the Company solely because the Company owns, directly Partnership or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment including reimbursement or advancement of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company out-of-pocket expenses and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof officers' and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendereddirectors' liability insurance; and
(12vii) a transaction or series loans to officers and employees made in the ordinary course of transactions involving payments business in an aggregate amount not in excess of to exceed $5.0 1.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceat any one time outstanding.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable (as reasonably determined by the Company) to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:: 72
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 25.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 100.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness or approved by the Company's Board of Directors;
(2) transactions (including a merger) between or among the Company and/or and any of its Restricted Subsidiaries or between 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 Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ fees' fees to Persons who are not otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) Restricted Payments and Permitted Investments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentshereof;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Dynegy Inc /Il/)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1i) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2ii) the Company delivers to the Trustee:
Trustee (Aa) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 1.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors and (Bb) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million (or if no member of the Board of Directors is an independent director, $1.0 million), an opinion as to the fairness to the Company or such Subsidiary holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The . Notwithstanding the foregoing, the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
; (2ii) transactions (including a merger) 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 Equity Interest in such Person;
(4iii) payment of reasonable directors’ fees;
directors fees to Persons who are not otherwise Affiliates of the Company; (5iv) provisioning or other agreements with SBC Communications, Inc. or any Affiliate thereof, and under any amendment or extension thereof so long as such agreement, amendment or extension is not disadvantageous to the holders of the Notes in any material respect; (v) payment of management and advisory fees to The VenCom Group Inc. or any Affiliate thereof in an amount during any calendar year period not to exceed $900,000, provided, that if the amount paid in any calendar year is less than $900,000, the annual cap in the next calendar year shall be equal to the difference between $1.8 million and the amount paid in the previous calendar year and further provided that amounts owed in excess of the cap in any year may be paid in one or more subsequent years if and to the extent that they are within the cap in such years; (vi) any sale or other issuance of Equity Interests equity interests (other than Disqualified Stock) of the Company Company; (vii) reasonable indemnity provided to Affiliates officers, directors, employees, consultants or agents of the Company and its Restricted Subsidiaries as determined in good faith by the granting Company's Board of Directors and as permitted by the Company's governing documents and applicable law; (viii) any transactions undertaken pursuant to any contractual obligations or performance of registration rights;
rights in existence on the Closing Date; and (6ix) Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicehereof.
Appears in 1 contract
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company its Affiliates (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $20.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would reasonably be expected to have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 50.0 million, a resolution of the Board of Directors of the Issuer set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) 4.14. The following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the preceding paragraph:
(1) transactions exclusively between or among the Issuer and/or one or more of its Restricted Subsidiaries (or any employment agreemententity that will become a Restricted Subsidiary as a result of such transaction);
(2) any agreement in effect on the Issue Date as in effect on the Issue Date (or the Release Date, in the case of Restricted Subsidiaries comprising the Target Group) or as thereafter amended in a manner which, taken as a whole, in the good faith judgment of the Board of Directors of the Issuer, is not materially less favorable to the Issuer or such Restricted Subsidiary than the original agreement as in effect on the Issue Date (or the Release Date, in the case of Restricted Subsidiaries comprising the Target Group);
(3) any employment, compensation, benefit or indemnity agreements, arrangements or plans in respect of any officer, director, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by consultant of the Company Issuer or any of its Restricted Subsidiaries entered into in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company business and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined approved by the Board of Directors of the Company)Issuer or an authorized committee thereof;
(104) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Mergerany transaction permitted as a “Permitted Investment”;
(115) transactions between the Issuer or any of its Restricted Subsidiaries on the one hand and any Person that is not a Subsidiary of the Issuer on the other hand; provided, in each case, that (i) such transaction (a) is on terms that are no less favorable to the Issuer or the relevant Restricted Subsidiary than those that would reasonably be expected to have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person and (b) is not otherwise in violation of this Indenture and (ii) no Affiliate of the Issuer (other than a Restricted Subsidiary) owns any Equity Interests in any Person that is a party to such transaction;
(6) the issuance and sale of Qualified Capital Stock;
(7) Restricted Payments that are permitted by Section 4.11;
(8) the consummation of the Assumption and the Acquisition Transactions and the payment of any reasonable fees or expenses incurred in connection therewith (including dividends to any direct or indirect parent entities of the Issuer to fund payment) and documented attorney’s all legal, accounting and other professional fees and expenses paid in consideration for services renderedexpenses; and
(129) a transaction transactions between or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence among the Issuer and/or its Restricted Subsidiaries on the date hereof one hand and consistent with past practicea Receivables Entity on the other hand, or transactions between a Receivables Entity and any Person in which the Receivables Entity has an Investment, in each case effected as part of a Qualified Receivables Transaction.
Appears in 1 contract
Sources: Indenture (PGT Innovations, Inc.)
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction (if pursuant to a written agreement, at the time of execution of the agreement providing therefor) is on terms that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(aParagraph 22(B)(x)(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 10.0 million, an opinion as to the fairness to the Company or such Subsidiary Issuer of such Affiliate Transaction from a 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 4.11(athe preceding subsection (a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreementemployment, consulting or similar agreement or any similar other compensation arrangement or plan entered into by the Company Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) between or among the Company Issuer and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary payment of reasonable directors fees and expenses and the provision of customary indemnification to directors and officers 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 such PersonIssuer;
(4) payment of reasonable directors’ fees;
(5) any issuance sales of Equity Interests of the Issuer (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsIssuer;
(5) Restricted Payments that are permitted by Paragraph 22(B)(vi) hereof;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof any agreement (and Permitted Investments;payments with respect thereto) as in effect on June 18, 2003 or any transaction contemplated thereby; and
(7) if such Affiliate Transaction any tax sharing agreement between the Issuer and any other Person which files a consolidated return in which the Issuer is with any Person solely in its capacity as a holder of debt or capital stock part of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentconsolidated group for tax purposes, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders aggregate amount of the Notes, taken as a whole, as determined all payments made by the Board Issuer to such Person in any period is no greater than the amount that would have been paid by the Issuer in such period if the Issuer had been the taxpayer of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceits consolidated group.
Appears in 1 contract
Sources: First Supplemental Indenture (Lodgenet Entertainment Corp)
Transactions with Affiliates. (a) The Neither the Company will not, and will not permit nor any of its the Restricted Subsidiaries to, make any payment to, or shall sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated PersonPerson and if in the reasonable business judgment of the Company's Board of Directors, no comparable transaction is available with which to compare such Affiliate transaction, such Affiliate transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(2) the Company delivers to the Trustee:
(A) with respect to any an Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million15,000,000, a resolution of the Board of Directors set forth in an Officers’ Officer's Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any an Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million25,000,000, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.; provided that the foregoing restrictions shall not apply to:
(bi) The following items will not be deemed transactions or payments pursuant to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreementarrangements, consulting agreement arrangements, director or any similar arrangement officer indemnification agreements or employee or director benefit plans entered into by the Company or any of its the Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or the Restricted Subsidiaries;
(iii) Restricted Payments permitted by the provisions of this Indenture pursuant to Section 4.07 hereof;
(iv) loans and advances to the Company's or any of the Restricted Subsidiaries' officers, directors and employees in the ordinary course of the Company's business or in the ordinary course of business of the Restricted Subsidiaries not exceeding $7,500,000 in the aggregate at any one time outstanding;
(v) any issuance or sale of Capital Stock (other than Redeemable Capital Stock) to, or receipt of capital contribution from, Affiliates of the Company;
(vi) transactions between the Company and any Person, 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;
(vii) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or funding of, employment arrangements, stock options and stock ownership plans or similar employee benefit plans approved by the Company's Board of Directors;
(viii) any transaction pursuant to any agreement in existence on the Issue Date, as such arrangement, contract or agreement may be amended, restated, renewed, extended, refinanced, refunded or replaced from time to time; provided that any such amendment or restatement, renewal, extension, refinancing, refunding or replacement is on terms and conditions not materially less favorable to the Company or the Restricted Subsidiaries, taken as a whole, than the arrangement, contract or agreement in existence on the Issue Date;
(ix) fees and compensation paid to and indemnity provided on behalf of the Company or any Restricted Subsidiaries' directors, officers or employees in the ordinary course of business;
(2x) transactions (including a merger) between or among advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary ordinary course 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 such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedbusiness; and
(12xi) transactions between a transaction or series of transactions involving payments not Receivables Subsidiary and any Person in excess of $5.0 million made pursuant which the Receivables Subsidiary has an Investment as required to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceeffect a Receivables Financing.
Appears in 1 contract
Sources: Indenture (Beverly Enterprises Inc)
Transactions with Affiliates. (a) The Company will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to occur any payment totransaction or series or related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any of its Affiliates (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 than those that would have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that for a transaction or series of related transactions with an aggregate value of $5.0 million or more, at Holdings option, either (each an “Affiliate Transaction”), unless:
(1i) a majority of the disinterested members of the Management Committee shall determine in good faith that such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would might reasonably have been obtained in a comparable transaction by at such time on an arm's-length basis from a Person that is not an Affiliate of Holdings or (ii) the Company Management Committee or any such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers party to the Trustee:
(A) with respect to any such Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, shall have received an opinion from a resolution of the Board of Directors set forth in an Officers’ Certificate certifying nationally recognized investment banking firm that such Affiliate Transaction complies is on terms 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 Holdings; and provided, further, that for an Affiliate Transaction with this Section 4.11(a) and an aggregate value of $10.0 million or more the Management Committee or any such Restricted Subsidiary party to such Affiliate Transaction shall have received an opinion from a nationally recognized investment banking firm that such Affiliate Transaction has is on terms not materially less favorable than those that might reasonably have been approved by obtained in a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, comparable transaction at such time on an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction arm's-length basis from a financial point Person that is not an Affiliate of view issued by an accounting, appraisal or investment banking firm of national standingHoldings.
(b) The following items will foregoing restrictions shall not be deemed apply to be Affiliate Transactions and(i) reasonable fees and compensation paid to and indemnity provided on behalf of, thereforeofficers, will directors, employee or consultants of Holdings or any Subsidiary as determined in good faith by the Management Committee or senior management; (ii) transactions exclusively between or among Holdings and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not be subject otherwise prohibited by this Indenture; (iii) any agreement as in effect as of July 22, 1998 or the date of this Indenture, or any amendment or replacement thereto or any transaction contemplated thereby (including pursuant to any amendment or replacement thereto) so long as any such amendment or replacement agreement is not more disadvantageous to the provisions Holders in any material respect than the original agreement as in effect on July 22, 1998 or the date of Section 4.11(a):
this Indenture, as the case may be; (1iv) any employment agreement, employee benefit plan, officer and director indemnification agreementRestricted Payments permitted by this Indenture; (v) the payment of customary annual management, consulting and advisory fees and related expenses to the Principals and their Affiliates made pursuant to any financial advisory, financing, underwriting or placement agreement or any similar arrangement entered into in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which are approved by the Company Management Committee or such Restricted Subsidiary in good faith; (vi) payments or loans to employees or consultants that are approved by the Management Committee in good faith; (vii) the existence of, or the performance by Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of, any securityholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of July 22, 1998 and any stockholders similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by Holdings or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or under any similar agreement entered into in connection with after July 22, 1998 shall only be permitted by this clause (vii) to the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on extent that the date terms of this Indenture and any amendment, modification, such amendment or replacement to such new agreement (so long as the amendment, modification or replacement is are not materially more disadvantageous to the Holders of Debentures in any material respect; (viii) transactions permitted by, and complying with, the Notesprovisions of Section 5.01; (ix) transactions effected as part of a Qualified Securitization Transaction; (x) transactions with customers, taken as a wholeclients, as determined by suppliers, or purchasers or sellers of goods or services, in each case in the Board ordinary course of Directors business and otherwise in compliance with the terms of this Indenture which are fair to Holdings or its Restricted Subsidiaries, in the reasonable determination of the Company);
Management Committee or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and (10xi) payments made in fulfillment of the Company’s obligations arising in connection any Affiliate Transaction with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12A) a transaction Principal or series of transactions involving payments Related Party not in excess of $5.0 1.0 million made pursuant to contracts, agreements or (B) any other arrangements Person not in existence on the date hereof and consistent with past practiceexcess of $100,000.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreementagree- ment, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of US$7.5 million, unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 US$10.0 million, a resolution resolu- tion of the Board of Directors of the Company set forth in an Officers’ Certificate certifying certi- fying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Affil- iate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 US$20.0 million, an opinion opin- ion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment invest- ment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, thereforethere- fore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) consummation of the Rights Offering and Standby Purchase;
(2) any employment agreement, employee compensation or benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement (and any payments pursuant there- to) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(23) transactions (including a merger) between or among the Company and/or or its Restricted Subsidiaries;
(34) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyCompa- ny) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(45) payment of reasonable and customary fees and reimbursements of expenses (pur- suant to indemnity arrangements, relocation programs or otherwise) of officers, directors’ fees, em- ployees or consultants of the Company or any of its Restricted Subsidiaries;
(56) the grant of equity incentives or similar rights to employees and directors of the Company pursuant to plans approved by the Company’s Board of Directors or a committee there- of comprised solely of independent directors;
(7) 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 Company’s Board of Directors or a committee thereof com- prised solely of independent directors;
(8) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(69) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentstransactions permitted by, and complying with, the provisions of Section 5.01 hereof;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture
Transactions with Affiliates. (a) The Company Parent shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Parent (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $5.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Parent or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis; and
(2) the Parent, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $10.0 million, adopts a resolution by the majority of the Board of Directors of the Parent approving such Affiliate Transaction.
(b) The provisions of Section 4.12(a) hereof shall not apply to the following:
(1) transactions between or among the Parent or any of its Restricted Subsidiaries, including with any entity that becomes a Restricted Subsidiary as a result of such transaction;
(2) Restricted Payments permitted by Section 4.07 hereof and Permitted Investments;
(3) [Reserved];
(4) the payment of reasonable and customary fees paid to, and indemnities provided for the benefit of, officers, directors, employees or consultants of the Parent, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(5) transactions in which the Parent 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 Parent or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Parent or its relevant Restricted Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(6) any agreement or arrangement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not materially disadvantageous to the Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date);
(7) the existence of, or the performance by the Parent 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 Parent or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous to the Holders when taken as a whole;
(8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, or licensees or licensors of intellectual property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Parent and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Parent or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(9) the issuance of Equity Interests (other than Disqualified Stock) of the Parent to any director, officer, employee or consultant;
(10) [Reserved];
(11) [Reserved];
(12) payments to employees, directors or consultants of the Parent, any of its direct or indirect parent companies or any of its Restricted Subsidiaries and employment agreements, stock option plans and other similar arrangements with such employees, directors or consultants which, in each case, are approved by the Parent in good faith ;
(13) [Reserved];
(14) [Reserved]; and
(15) leases with any Affiliates entered into in the ordinary course of business.
(c) In addition, the Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any controlled Affiliate of the Company Parent other than the Issuer and its Restricted Subsidiaries or a Guarantor (each of the foregoing, an “Issuer Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5.0 million, unless:
(1) such Issuer Affiliate Transaction is on terms that are not materially less favorable to the Company Issuer or the its relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; andPerson on an arm’s-length basis;
(2) the Company delivers to the Trustee:
(A) Issuer, with respect to any Issuer Affiliate Transaction or series of related Issuer Affiliate Transactions involving aggregate payments or consideration in excess of $15.0 10.0 million, adopts a resolution by the majority of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsIssuer approving such Issuer Affiliate Transaction; and
(B3) the Issuer, with respect to any Issuer Affiliate Transaction or series of related Issuer Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 million, an opinion as delivers to the fairness Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an accounting, appraisal or investment banking firm of national standingunrelated Person on an arm’s-length basis.
(bd) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):4.12(c) shall not apply to the following:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of permitted by Section 4.07 hereof and Permitted Investments;
(72) if such Affiliate Transaction is with any Person solely incurrence of Indebtedness pursuant to Section 4.10(c)(22);
(3) transactions in its capacity as a holder of debt or capital stock of which the Company Issuer or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s 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 to the Issuer or its relevant Restricted Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(8) 4) any agreement or arrangement as in effect as of the existence of or the performance by the Company Issue Date, or any amendment thereto (so long as any such amendment is not materially disadvantageous to the Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date);
(5) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, or licensees or licensors of intellectual property, in each case in the Company’s Restricted Subsidiaries ordinary course of business and otherwise in compliance with any of its obligations under the terms of any stockholders this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or similar agreement entered into in connection with the ESSI Mergersenior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(96) transactions effected accruals (if any) by the Issuer and its Subsidiaries pursuant to tax sharing agreements among the Issuer, any direct or indirect parent of the Issuer and any Subsidiaries of the Issuer on customary terms with respect to any such agreement in effect on the date hereof, provided, that no payments shall be made with respect to such accruals); and
(7) any transaction permitted pursuant to the next two paragraphs. The Issuer shall not, and shall not permit any of this Indenture and its Restricted Subsidiaries to enter into any amendment, modificationnew intellectual property or other intercompany agreements providing for fees paid to the Toys Delaware Group, or replacement make any modification to any such agreement existing on the Issue Date, unless (so long as the amendment, modification i) such agreements or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a wholemodifications are on arm’s-length terms, as determined by the Board of Directors of the Company);
Issuer and (10ii) payments made in fulfillment (x) if applicable, such agreements or modifications have been submitted for approval to a relevant taxing authority, together with an analysis prepared by an Independent Financial Advisor supporting the determination of an authorized officer of the Company’s obligations arising Parent or the Issuer that such agreement or modification is on arm’s-length terms, or (y) 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 to the Issuer or its relevant Restricted Subsidiary than those that would have reasonably been obtained in connection a comparable transaction by the Issuer or such Restricted Subsidiary with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence an unrelated Person on the date hereof and consistent with past practicean arm’s-length basis.
Appears in 1 contract
Sources: Indenture (Toys R Us Inc)
Transactions with Affiliates. (a) The Company Borrower will not, and Borrower will not cause or permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to exist any payment totransaction (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee with, service) with or for the benefit of, of any of Borrower's Affiliates or any Affiliate of the Company a Subsidiary of Borrower (each other than Borrower or any Wholly-Owned Subsidiary of Borrower) (an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction is other than transactions that are on terms that are not materially no less favorable to the Company Borrower or the relevant Restricted Subsidiary, taken as a whole, to such Subsidiary than those that would reasonably have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with on an unrelated Personarm's-length basis from a Person that is not an Affiliate; and
(2) the Company delivers to the Trustee:
(A) provided, however, that with respect to any Affiliate Transaction or series of related Affiliate Transactions involving a value or aggregate consideration in excess payments of $15.0 million1,000,000 or more, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying determination that such Affiliate Transaction complies with this Section 4.11(a) and or series of related Affiliate Transactions is or are on terms that are no less favorable to Borrower or to such Subsidiary than those that would reasonably have been obtained in a comparable transaction on an arm's-length basis from a Person that is not an Affiliate will be made, prior to the consummation of any such Affiliate Transaction has been approved or series of related Affiliate Transactions, reasonably and in good faith by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series Directors of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionBorrower, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from and evidenced by a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined resolution adopted by the Board of Directors of the Company);Borrower filed with Administrative Agent. The foregoing restrictions will not apply to:
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(111) reasonable and documented attorney’s fees customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) loans or advances to officers of Borrower and of its Subsidiaries for business travel expenses paid incurred in consideration the ordinary course of business and other loans and advances to such Persons for services renderedbona fide business purposes not to exceed $500,000 in the aggregate at any one time outstanding for Borrower and its Subsidiaries; and
or (123) a transaction or series of the transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence listed on the date hereof and consistent with past practiceSchedule 8.8.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Issuer involving aggregate consideration in excess of $5.0 million (each each, an “Affiliate Transaction”), unless:
(1) such the Affiliate Transaction is on terms that that, taken as a whole, are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 20.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Issuer, together with a certified copy of the resolutions of the Board of Directors of the Issuer approving such Affiliate Transaction or Affiliate Transactions; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 30.0 million, an opinion as to the fairness to the Company Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Issuer or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company Issuer and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyIssuer) that is an Affiliate of the Company Issuer solely because the Company Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company Issuer to Affiliates of the Company and the granting or performance of registration rightsIssuer;
(6) Permitted Investments or Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments4.07;
(7) if such Affiliate Transaction is payment of fees and the reimbursement of other expenses to the Permitted Holders and/or their Affiliates in connection with any Person solely the Transactions as described in its capacity as a holder of debt or capital stock of the Company or any of Offering Memorandum under the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariescaption “Certain Relationships and Related Transactions”;
(8) payments by the Issuer or any of its Restricted Subsidiaries to Welsh, Carson, A▇▇▇▇▇▇▇ & S▇▇▇▇ X, L.P. and/or any of its Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the majority of the disinterested members of the Board of Directors of the Issuer in good faith in an aggregate amount for all such fees not to exceed 2.00% of the aggregate transaction value in respect of which such services are rendered;
(9) loans (or cancellation of loans) or advances to employees in the ordinary course of business;
(10) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, and which are fair to the Issuer or its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors, chief executive officer or chief financial officer of the Issuer or its Restricted Subsidiaries, as applicable, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(11) the existence of of, or the performance by the Company Issuer or any Restricted Subsidiary of their obligations, if any, or obligations of Holdings under the terms of, any subscription, registration rights or stockholders agreement, partnership agreement or limited liability company agreement to which Holdings, the Issuer or any Restricted Subsidiary is a party as of the Company’s Issue Date and which is disclosed in the Offering Memorandum under the caption “Certain Relationships and Related Transactions” and any similar agreements which the Issuer, any Restricted Subsidiaries with Subsidiary, Holdings or any other direct or indirect parent company of its the Issuer may enter into thereafter; provided, however, that the entering into by the Issuer or any Restricted Subsidiary or the performance by the Issuer 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 will only be permitted by this clause to the extent that the terms of any stockholders such amendment or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notesnew agreement, taken as a whole, are not materially disadvantageous to the holders of the notes, as determined in good faith by the Board of Directors, chief executive officer or chief financial officer of the Issuer;
(12) the Transactions, including all payments made or to be made in connection with the Transactions as described in the Offering Memorandum;
(13) any Qualified Receivables Transaction;
(14) Permitted Payments to Parent;
(15) any management, consulting, monitoring, financial advisory, financing, underwriting or placement services or any other investment banking, banking or similar services involving the Issuer and any of its Restricted Subsidiaries (including without limitation any payments in cash, Equity Interests or other consideration made by the Issuer or any of its Restricted Subsidiaries in connection therewith) on the one hand and the Permitted Holders on the other hand, which services (and payments and other transactions in connection therewith) are approved as fair to the Issuer or such Restricted Subsidiary by a majority of the members of the Board of Directors of the CompanyIssuer in good faith;
(16) the issuance of Equity Interests (other than Disqualified Stock) in the Issuer or any Restricted Subsidiary for compensation purposes;
(17) any lease entered into between the Issuer or any Restricted Subsidiary, as lessee and any Affiliate of the Issuer, as lessor, which is approved by a majority of the disinterested members of the Board of Directors of the Issuer in good faith;
(18) intellectual property licenses in the ordinary course of business;
(19) Existing Indebtedness and any other obligations pursuant to an agreement existing on the Issue Date and described in the Offering Memorandum, including any amendment thereto (so long as such amendment is not disadvantageous to the Holders in any material respect);
(1020) payments made transactions in fulfillment which the Issuer or any Restricted Subsidiary delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view and which are approved by a majority of the Company’s obligations arising disinterested members of the Board of Directors of the Issuer in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedgood faith; and
(1221) a transaction payments by the Issuer or series any of transactions involving payments not in excess its Restricted Subsidiaries of $5.0 million made pursuant to contractsreasonable insurance premiums to, agreements and any borrowings or other arrangements in existence on the date hereof and consistent with past practicedividends received from, any Captive Insurance Subsidiary.
Appears in 1 contract
Sources: Indenture (Usp Mission Hills, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1a) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2b) the Company delivers to the Trustee:: 40
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 1.0 million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 2.5 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) . The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1a) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement that is in effect on the date of this Indenture or any similar arrangement that is entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and consistent with the past practice of the Company or such Restricted Subsidiary;
(2b) transactions (including a merger) 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 Equity Interest in such Person;
(4c) payment of reasonable directors’ feesdirectors fees to Persons who are not otherwise Affiliates of the Company;
(5d) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6e) Restricted Payments that do not violate the provisions of are permitted by Section 4.07 hereof and Permitted Investments4.07;
(7f) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock advances to Officers of the Company or any Restricted Subsidiary of the Company’s Company in the ordinary course of business to provide for the payment of reasonable expenses incurred by such Persons in the performance of their responsibilities to the Company or such Restricted Subsidiaries where such Person is treated no more favorably than Subsidiary or in connection with any other holder of debt relocation;
(g) reasonable fees and compensation (including, without limitation, bonuses, retirement plans and securities, equity options and equity ownership plans) paid or capital stock issued to and indemnities provided on behalf of, Officers, directors, employees or consultants of the Company or any Restricted Subsidiary in the ordinary course of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedbusiness; and
(12h) a transaction or series of any other transactions involving payments not in excess of $5.0 million made expressly authorized by the Court pursuant to contracts, agreements the Plan or other arrangements any order entered by the Court in existence on the date hereof and consistent with past practicerespect thereof.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Parent (each of the foregoing, an “Affiliate Transaction”), ) involving aggregate payments or consideration in excess of $25 million unless:
: (1i) such Affiliate Transaction is on terms that are not materially less favorable to the Company Parent or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary Person with an unrelated PersonPerson on an arm’s-length basis; and
(2ii) any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $50 million is approved by a majority of the Company board of directors (or equivalent body) of Parent; and (iii) Parent delivers to the Trustee:
(A) Administrative Agent 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 of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 75 million, an opinion as to the fairness to the Company Parent or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items foregoing provisions will not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 4.11(a):following:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement transactions between or among Parent or any similar arrangement entered into by the Company Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary as a result of, or in connection with, such transaction, so long as neither such Person nor the selling entity was an Affiliate of its Parent or any Restricted Subsidiaries in the ordinary course of businessSubsidiary prior to such transaction);
(2) transactions Restricted Payments permitted to be made pursuant to Section 7.05 and Investments permitted to be made pursuant to Section 7.06;
(including a merger3) between the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements and agreements provided on behalf of, or among the Company and/or entered into with, officers, directors, employees or consultants of Parent or any of its Restricted Subsidiaries;
(34) transactions with a Person any agreement or arrangement (other than an Unrestricted Subsidiary i) as in effect as of the CompanyClosing Date or (ii) that anticipated to be entered into in connection with the Separation and/or the IPO, in each case, as set forth on Schedule 7.07, or any amendment thereto (so long as any such amendment is an Affiliate of not disadvantageous in any material respect to the Company solely because Lenders when taken as a whole as compared to the Company ownsapplicable agreement, directly or through a Restricted Subsidiaryas determined in good faith by Parent) and any transaction contemplated thereby, an Equity Interest as determined in such Person;
(4) payment of reasonable directors’ feesgood faith by Parent;
(5) any the Transactions and the payment of all fees and expenses related to the Transactions;
(6) transactions with customers (including leases and other arrangements for the use of advertising space), clients, suppliers, or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement which are fair to Parent and its Restricted Subsidiaries, in the reasonable determination of the board of directors (or equivalent body) of Parent or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(7) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted SubsidiariesParent;
(8) sales (including in the existence form of capital contributions) of accounts receivable, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into participations therein, and related assets in connection with the ESSI Mergerany Receivables Facility and related servicing arrangements, performance undertakings and other Affiliate Transactions that are customary in connection with Receivables Facilities;
(9) transactions effected pursuant payments or loans (or cancellation of loans) to agreements employees, directors or consultants of Parent or any of its Restricted Subsidiaries and employment agreements, benefit plans, equity plans, stock option and stock ownership plans and other similar arrangements with such employees, directors or consultants which, in effect on the date of this Indenture and any amendmenteach case, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined are approved by the Board of Directors of the Company)Parent in good faith;
(10) payments made transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in fulfillment the ordinary course of the Company’s obligations arising in connection with the ESSI Mergerbusiness;
(11) reasonable transactions with respect to which Parent or any Restricted Subsidiary, as the case may be, has obtained a letter from an Independent Financial Advisor stating that such transaction is fair to Parent or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 7.07(a)(i);
(12) the issuances of securities or other payments, loans (or cancellation of loans) awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, benefit plans, equity plans, stock option and documented attorney’s fees and expenses paid stock ownership plans or similar employee benefit plans approved by the Board of directors (or equivalent body) of Parent in good faith;
(13) any contribution to the capital of Parent (other than in consideration for services renderedof Disqualified Stock); and
(1214) a transaction or series the provision to Unrestricted Subsidiaries of transactions involving payments cash management, accounting and other overhead services in the ordinary course of business undertaken in good faith and not for the purpose of circumventing any covenant set forth in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicethis Agreement.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to exist any payment totransaction (including the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any Affiliate of the Company its Affiliates (each an “Affiliate Transaction”), unlessother than:
(1) such Affiliate Transaction is Transactions otherwise permitted in this Section 4.13; and
(2) Affiliate Transactions on terms that are not materially no less favorable to the Company or such 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 such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which 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 Board of Directors of the Company or 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 foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions which are part of a common plan) that involves an aggregate fair market value of more than $15.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, taken as the case may be, from a wholefinancial point of view, than those that would have been obtained from an investment banking, appraisal or accounting firm, in a comparable transaction by each case of national standing, and file the same with the Trustee. The restrictions set forth in the first two paragraphs of this Section 4.13 shall not apply to:
(1) reasonable fees and compensation paid to and employee benefits plans or arrangements and indemnity provided to or on behalf of, officers, directors, employees or consultants of the Company or such any Restricted Subsidiary with an unrelated Person; andof the Company as determined in good faith by the Company’s Board of Directors or senior management;
(2) transactions between or among the Company delivers and any of its Restricted Subsidiaries or between or among such Restricted Subsidiaries; provided such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the Measurement 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 Trustee:Holders in any material respect than the original agreement as in effect on the Measurement Date as determined in good faith by the Board of Directors or senior management of the Company;
(A4) Restricted Payments and Permitted Investments permitted by this Indenture;
(5) transactions between the Company or one of its Restricted Subsidiaries and any Person in which the Company or one of its Restricted Subsidiaries has made an Investment and such Person is an Affiliate solely because of such Investment;
(6) any issuance of Capital Stock of or capital contributions to the Company;
(7) transactions with respect 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 any Affiliate Transaction the Company or series of related Affiliate Transactions involving aggregate consideration its Restricted Subsidiaries, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in excess of $15.0 million, a resolution each case in the reasonable determination of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of or the disinterested members of the Board of Directorssenior management thereof; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to 8) transactions between the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any one of its Restricted Subsidiaries and any Securitization Vehicle in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Saxon Capital Inc)
Transactions with Affiliates. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries of the Company Borrower to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Borrower (each of the foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $10,000,000, unless:
(1) unless such Affiliate Transaction is on terms that are not materially less favorable to the Company Borrower or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would could have been obtained in a comparable transaction by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and.
(2b) the Company delivers The foregoing provisions will not apply to the Trusteefollowing:
(Ai) with respect to transactions between or among (x) Holdings and/or any Affiliate Transaction of its Restricted Subsidiaries (or series an entity that becomes a Restricted Subsidiary as a result of related Affiliate Transactions involving aggregate consideration in excess such transaction) and (y) Holdings and/or any of $15.0 millionits Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction), a resolution the Tower Borrower and/or the Tower LLC and (B) any merger or consolidation of the Board Company Borrower or any direct parent company of Directors the Company Borrower, provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company Borrower and such merger or consolidation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
(ii) Restricted Payments permitted by Section 6.2 (including any payments that are exceptions to the definition of Restricted Payments set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a6.2(a)(i) through (iv)) and that such Affiliate Transaction has been (B) Permitted Investments;
(iii) transactions pursuant to compensatory, benefit and incentive plans and agreements with officers, directors, managers or employees of the Company Borrower or any of its Restricted Subsidiaries approved by a majority of the disinterested members Board of Directors of the Board of Directors; andCompany Borrower in good faith;
(Biv) with respect to the payment of reasonable and customary fees and reimbursements paid to, and indemnity and similar arrangements provided on behalf of, former, current or future officers, directors, managers, employees or consultants of the Company Borrower or any Affiliate Transaction Restricted Subsidiary or series any direct or indirect parent of related Affiliate Transactions involving aggregate consideration the Company Borrower;
(v) transactions in excess which the Company Borrower or any of $25.0 millionthe Restricted Subsidiaries, an opinion as the case may be, delivers to the fairness Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Borrower or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm meets the requirements of national standing.clause (a)(i) of this Section 6.5;
(bvi) The following items will not be deemed payments, loans or advances to be Affiliate Transactions andemployees or consultants or guarantees in respect thereof (or cancellation of loans, therefore, will not be subject to the provisions of Section 4.11(a):
(1advances or guarantees) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries for bona fide business purposes in the ordinary course of business;
(2vii) transactions any agreement, instrument or arrangement as in effect as of the Closing Date or any transaction contemplated thereby, or any amendment thereto (including so long as any such amendment is not disadvantageous to Lenders in any material respect when taken as a merger) between or among whole as compared to the applicable agreement as in effect on the Closing Date as reasonably determined by the Company and/or its Restricted SubsidiariesBorrower in good faith);
(3viii) the existence of, or the performance by the Company Borrower or any of its Restricted Subsidiaries of its obligations under the terms of any stockholders or similar agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date, and any amendment thereto or similar transactions, agreements or arrangements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company Borrower or any of its Restricted Subsidiaries of its obligations under, any future amendment to any such existing transaction, agreement or arrangement or under any similar transaction, agreement or arrangement entered into after the Closing Date shall only be permitted by this clause (viii) to the extent that the terms of any such existing transaction, agreement or arrangement together with all amendments thereto, taken as a whole, or new transaction, agreement or arrangement are not otherwise more disadvantageous to the Lenders in any material respect than the original transaction, agreement or arrangement as in effect on the Closing Date;
(ix) transactions with a Person (other than an Unrestricted Subsidiary customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the Company) that is an Affiliate ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to the Company Borrower and the Restricted Subsidiaries of the Company solely because Borrower in the reasonable determination of the Company ownsBorrower, directly and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or through a Restricted Subsidiary, an Equity Interest (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in such Personthe ordinary course of business;
(4x) payment of reasonable directors’ feesthe Tower Transaction, (x) the Tower Borrower Release, (y) the Transactions and, (zx) the Amendment No. 1 Transactions and (y) the Amendment No. 2 Transactions and, in each case transactions reasonably related thereto;
(5xi) any the sale or issuance of Equity Interests (other than Disqualified Stock) of the Company Borrower;
(xii) the payment of annual management, consulting, monitoring and advisory fees to the Sponsor pursuant to the Management Agreement to the Sponsor in an aggregate amount in any fiscal year not to exceed $5,000,000, plus all out-of-pocket reasonable expenses Incurred by the Sponsor or any of its Affiliates in connection with the performance of management, consulting, monitoring, advisory or other services with respect to the Company Borrower and its Restricted Subsidiaries, plus any applicable termination fee paid pursuant to such Management Agreement;
(xiii) payments by the Company Borrower or any of its Restricted Subsidiaries to the Sponsor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are (x) made pursuant to agreements with the Sponsor as in effect on the Closing Date or (y) approved by a majority of the Board of Directors of the Company and Borrower or any direct or indirect parent of the granting or performance of registration rightsCompany Borrower in good faith;
(6xiv) any contribution to the capital of the Company Borrower or any Restricted Payments that do not violate Subsidiary;
(xv) transactions permitted by, and complying with, the provisions of Section 4.07 hereof and Permitted Investments6.7;
(7xvi) if such Affiliate Transaction transactions between the Company Borrower or any of its Restricted Subsidiaries and any Person, a director of which is with any Person solely in its capacity as also a holder of debt or capital stock director of the Company Borrower or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt direct or capital stock indirect parent of the Company or any Borrower; provided, however, that such director abstains from voting as a director of the Company’s Restricted Company Borrower or such direct or indirect parent of the Company Borrower, as the case may be, on any matter involving such other Person;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(8) the existence of or the performance xviii) any employment agreements, option plans and other similar arrangements entered into by the Company Borrower or any of the Company’s its Restricted Subsidiaries with any employees or consultants in the ordinary course of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Mergerbusiness;
(9xix) transactions effected the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to agreements in effect on the date of this Indenture and any amendment, modificationto, or replacement to such agreement (so long as the amendmentfunding of, modification employment arrangements, stock option and stock ownership plans or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined similar employee benefit plans approved by the Board of Directors of the CompanyCompany Borrower or any direct or indirect parent of the Company Borrower or of a Restricted Subsidiary of the Company Borrower, as appropriate, in good faith;
(xx) the entering into of any tax sharing agreement or arrangement or the Tax Receivable Agreement and any payments permitted by Section 6.2(b)(xii) and Section 6.2(b)(xxv);
(10xxi) payments made in fulfillment any transaction involving aggregate consideration of less than $20,000,000 so long as any such transaction is approved by the Company’s obligations arising in connection with the ESSI MergerBoard of Directors of Holdings or its Restricted Subsidiaries, as applicable;
(11xxii) reasonable any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Company Borrower or any of its Restricted Subsidiaries with current, former or future officers and documented attorney’s fees employees of the Company Borrower or any of its respective Restricted Subsidiaries and expenses the payment of compensation to officers and employees of the Company Borrower or any of its respective Restricted Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in consideration for services renderedeach case in the ordinary course of business;
(xxiii) transactions with a Person that is an Affiliate of the Company Borrower solely because the Company Borrower, directly or indirectly, owns Equity Interests in, or controls, such Person entered into in the ordinary course of business;
(xxiv) transactions listed on Schedule 6.5;
(xxv) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Company Borrower 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;
(xxvi) any agreement that provides customary registration rights to the equity holders of the Company Borrower or any direct or indirect parent of the Company Borrower and the performance of such agreements;
(xxvii) payments to and from and transactions with any joint venture in the ordinary course of business; provided such joint venture is not controlled by an Affiliate (other than a Restricted Subsidiary) of the Company Borrower; and
(12xxviii) transactions between any Group Member and any Person that is an Affiliate thereof solely due to the fact that a transaction director of such Person is also a director of Holdings or series any direct or indirect parent of transactions Holdings; provided, however, that such director abstains from voting as a director of Holdings or such direct or indirect parent of Holdings, as the case may be, on any matter involving payments not in excess of $5.0 million made pursuant to contracts, agreements or such other arrangements in existence on the date hereof and consistent with past practicePerson.
Appears in 1 contract
Transactions with Affiliates. (a) 129 The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment todirectly or indirectly, or sell, lease, transfer transfer, or otherwise dispose of any of its properties or assets Property to, or purchase any property or assets Property from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance advance, Guarantee or guarantee with, transaction (including the rendering of services) with or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction or series of Affiliate Transactions is (i) in the best interest of the Company or such Restricted Subsidiary and (ii) on terms that are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm's-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated Person; and
Affiliate (2or, in the event that there are no comparable transactions involving Persons who are not Affiliates of the Company or the relevant Restricted Subsidiary to apply for comparative purposes, is otherwise on terms that, taken as a whole, the Company has determined to be fair to the Company or the relevant Restricted Subsidiary) and (b) the Company delivers to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration payments in excess of $15.0 million10,000,000 but less than $15,000,000, a resolution certificate of the chief executive, operating or financial officer of the Company evidencing such officer's determination that such Affiliate Transaction or series of Affiliate Transactions complies with clause (a) above and (ii) with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments equal to or in excess of $15,000,000, a Board of Directors set forth in an Officers’ Certificate Resolution certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction or series of Affiliate Transactions has been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors; and
(B) , provided that, in the -------- event that there shall not be at least two disinterested members of the Board of Directors with respect to any the Affiliate Transaction, the Company shall, in addition to such Board Resolution, file with the Trustee a written opinion from an investment banking firm of national standing in the United States which, in the good faith judgment of the Board of Directors, is independent with respect to the Company and its Affiliates and qualified to perform such task, which opinion 130 shall be to the effect that the consideration to be paid or received in connection with such Affiliate Transaction or series is fair, from a financial point of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionview, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accountingRestricted Subsidiary. Notwithstanding the foregoing, appraisal or investment banking firm of national standing.
(b) The the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business and consistent with industry practice; (2ii) any agreement or arrangement with respect to the compensation of a director or officer of the Company or any Restricted Subsidiary approved by a majority of the disinterested members of the Board of Directors and consistent with industry practice; (iii) transactions (including a merger) between or among the Company and/or and its Restricted Subsidiaries;
(3) transactions with a Person (other , provided that no -------- more than an Unrestricted Subsidiary 5% of the CompanyVoting Stock (on a fully diluted basis) that of any such Restricted Subsidiary is owned by an Affiliate of the Company solely because the Company owns, directly or through (other than a Restricted Subsidiary, an Equity Interest in such Person;
); (4iv) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests Restricted Payments and Permitted Investments permitted by Section 1012 (other than Disqualified Stock) of the Company to Investments in Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do are not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
); (8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under v) transactions pursuant to the terms of any stockholders agreement or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements arrangement as in effect on the date Measurement Date; and (vi) transactions with respect to wireline or wireless transmission capacity, the lease or sharing or other use of cable or fiber optic lines, equipment, rights-of-way or other access rights, between the Company (or any Restricted Subsidiary) and any other Person, provided that, in the case of this Indenture and any amendmentclause -------- (vi), modification, or replacement to such agreement transaction complies with clause (so long as a) in the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceimmediately preceding paragraph.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate of the Company; and
(2ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company have determined in good faith that the criteria set forth in the immediately preceding clause (i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company; and
and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 75.0 million, an the Board of Directors of the Company shall also have received a written opinion as to the fairness to the Company or such Subsidiary and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items will not be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1i) any employment agreementtransaction with the Company, employee benefit plana Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, officer joint venture or similar entity;
(ii) Restricted Payments and director indemnification agreementPermitted Investments (other than pursuant to clauses (3), consulting agreement (10) and (11) of the definition thereof) permitted by this Indenture;
(iii) the payment to the Sponsors, any of their Affiliates, and officers of the Company or any similar arrangement of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination payments and related reasonable expenses pursuant to (A) the Advisory Agreement or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the Advisory Agreement) or (B) other agreements as in effect on the Issue Date that are (x) entered into in connection with the Transactions and (y) as described in the Offering Memorandum or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date);
(iv) the payment of reasonable and customary compensation and fees to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent corporations, or any Restricted Subsidiary, as determined in good faith by the Board of Directors of the Company or senior management thereof;
(v) payments made by the Company or any Restricted Subsidiary to the Sponsors and any of their Affiliates for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the disinterested members of the Board of Directors of the Company in good faith;
(vi) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view;
(vii) payments or loans (or cancellations of loans) to employees or consultants of the Company or any of its direct or indirect parent corporations or any Restricted Subsidiary which are approved by the Board of Directors of the Company and which are otherwise permitted under this Indenture, but in any event not to exceed $10.0 million in the aggregate outstanding at any one time;
(viii) payments made or performance under any agreement as in effect on the Issue Date or as described in the Offering Memorandum (other than the Advisory Agreement and the Shareholders Agreement, but including, without limitation, each of the other agreements entered into in connection with the Transactions);
(ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the Shareholders Agreement (including any registration rights agreement or purchase agreements related thereto to which it is a party on the Issue Date and any similar agreement that it may enter into thereafter); provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to the Shareholders Agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (ix) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to holders of the Notes in any material respect than the original agreement as in effect on the Issue Date;
(x) the Transactions and the payment of all transaction, underwriting, commitment and other fees and expenses incurred in connection with the Transactions;
(xi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture that are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(2xii) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company and the granting or performance of registration rights(other than a Subsidiary);
(6xiii) Restricted Payments that do not violate investments by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely Sponsors in its capacity as a holder of debt or capital stock securities of the Company or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as (A) the amendment, modification investment is being offered generally to other investors on the same or replacement is not materially more disadvantageous to favorable terms and (B) the Holders investment constitutes less than 5% of the Notes, taken as a whole, as determined by the Board proposed or outstanding issue amount of Directors such class of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedsecurities; and
(12xiv) any transaction with a transaction or series Securitization Subsidiary effected as part of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicea Qualified Securitization Financing.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Issuers (each each, an “"Affiliate Transaction”"), involving aggregate consideration in excess of $1.0 million, unless:
(1) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):) hereof:
(1) any employment agreement, employee benefit plan, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company and/or any of 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 Equity Interest in in, or controls, such Person;
(4) payment of reasonable fees to, and indemnity provided on behalf of, officers, directors’ fees, employees or consultants of the Company or any of its Restricted Subsidiaries or any direct or indirect parent company of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or to any director, officer, employee or consultant of the Company or any direct or indirect parent company of the Company, and the granting or and performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investmentshereof;
(7) the entering into any agreement to pay, and the payment of, customary annual management, consulting, monitoring and advisory fees and related expenses to the Equity Investors;
(8) loans or advances to employees or consultants in the ordinary course of business not to exceed $2.0 million in the aggregate at any one time outstanding;
(9) any transaction effected as part of a Qualified Receivables Financing;
(10) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of Section 4.11(a);
(11) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any acquisition agreements or members' or stockholders agreement or related documents to which it is a party as of the date of this Indenture and any amendment thereto or similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the date of this Indenture shall only be permitted by this clause (11) to the extent that the terms of any such existing agreement, together with all amendments thereto, taken as a whole, or such new agreement are not otherwise more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the date of this Indenture;
(12) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), materially no less favorable to the Company or its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person, in the reasonable determination of the Board of Directors of the Company or senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(13) (x) guarantees of performance by the Company and its Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (y) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(14) if such Affiliate Transaction is with any a Person solely in its capacity as a holder of debt Indebtedness or capital stock Capital Stock of the Company or any of the Company’s Restricted Subsidiaries Subsidiary where such Person is treated no more favorably than any other holder the holders of debt Indebtedness or capital stock Capital Stock of the Company or any of the Company’s Restricted SubsidiariesSubsidiary;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(915) transactions effected pursuant to agreements in effect on the issue date of this Indenture and any amendment, modification, modification or replacement to of such agreement (so long as the amendment, modification such amendment or replacement is not materially more disadvantageous to the Holders holders of the Notesnotes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(1216) a transaction or series of transactions involving payments not in excess of $5.0 million to the Equity Investors made pursuant to contractsfor any financial advisory, agreements financing or other arrangements investment banking activities, including without limitation, in existence on connection with acquisitions or divestitures, which payments are approved by a majority of the date hereof and consistent with past practiceBoard of Directors.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee involving aggregate consideration in excess of $25.0 million with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
: (1a) such the Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would reasonably be expected to have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 50.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series Directors of related Affiliate Transactions involving aggregate consideration in excess of $25.0 millionthe Company. Notwithstanding the foregoing, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):the prior paragraph:
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement (or any similar arrangement amendment thereto) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary, including the payment of indemnities provided for the benefit of employees party to such employment agreements and the payment of compensation to the officers, directors and employees of the Company and its Restricted Subsidiaries;
(2) transactions (including a merger) 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, owns an Equity Interest in in, or controls, such Person;
(4) payment of reasonable directors’ feesfees and indemnities provided for the benefit of directors;
(5) any issuance issuances or sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) the pledge of Equity Interests of Unrestricted Subsidiaries; and
(7) Permitted Investments and Restricted Payments that do not violate are permitted by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicehereof.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, assign, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $5.0 million, unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate of the Company; and
(2ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an a majority of the disinterested members of the Board of Directors of the Company have determined in good faith that the criteria set forth in the immediately preceding clause (i) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $75.0 million, the Board of Directors of the Company shall also have received a written opinion as to the fairness to the Company or such Subsidiary and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items will not be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1i) any employment agreementtransaction with the Company, employee benefit plana Restricted Subsidiary or joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such Restricted Subsidiary, officer joint venture or similar entity;
(ii) Restricted Payments and director indemnification agreementPermitted Investments (other than pursuant to clauses (3), consulting agreement (10) and (11) of the definition thereof) permitted by this Indenture;
(iii) the payment to the Sponsors, any of their Affiliates, and officers of the Company or any similar arrangement entered of its Restricted Subsidiaries, of management, consulting, monitoring and advisory fees, termination payments and related reasonable expenses pursuant to (A) the Advisory Agreement or (B) other agreements as in effect on the Issue Date that are as described in the Offering Memorandum or any amendment thereto (so long as any such amendment is not less advantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date);
(iv) the payment of reasonable and customary compensation and fees to, and indemnities provided on behalf of (and entering into related agreements with) officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies, or any Restricted Subsidiary, as determined in good faith by the Board of Directors of the Company or Senior Management;
(v) payments made by the Company or any Restricted Subsidiary to the Sponsors and any of their Affiliates for any management, consulting, monitoring, financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with financings, acquisitions or divestitures, which payments are approved by a majority of the disinterested members of the Board of Directors of the Company in good faith;
(vi) transactions in which the Company or any Restricted Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view;
(vii) payments or loans (or cancellations of loans) to employees or consultants of the Company or any of its direct or indirect parent companies or any Restricted Subsidiary which are approved by the Board of Directors of the Company and which are otherwise permitted under this Indenture, but in any event not to exceed $20.0 million in the aggregate outstanding at any one time;
(viii) payments made or performance under any agreement as in effect on the Issue Date or as described in the Offering Memorandum (other than the Advisory Agreement and the Shareholders Agreements);
(ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, the Shareholders Agreements (including any registration rights agreement or purchase agreements related thereto to which it is a party on the Issue Date and any similar agreement that it may enter into thereafter); provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to the Shareholders Agreements or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (ix) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to holders of the Notes in any material respect than the original agreement as in effect on the Issue Date;
(x) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture that are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the Company or Senior Management, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(2xi) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to any Permitted Holder, any director, officer, employee or consultant of the Company or its Subsidiaries or any other Affiliates of the Company and the granting or performance of registration rights(other than a Subsidiary);
(6xii) Restricted Payments that do not violate investments by the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely Sponsors in its capacity as a holder of debt or capital stock securities of the Company or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as (A) the amendment, modification investment is being offered generally to other investors on the same or replacement is not materially more disadvantageous to favorable terms and (B) the Holders investment constitutes less than 5% of the Notes, taken as a whole, as determined by the Board proposed or outstanding issue amount of Directors such class of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedsecurities; and
(12xiii) any transaction with a transaction or series Securitization Subsidiary effected as part of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicea Qualified Securitization Financing.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, enter into or permit to exist any payment totransaction (including the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets fromthe rendering of any management, consulting, investment banking, advisory or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, other services) with any Affiliate of the Company (each an “Affiliate Transaction”), unlessexcept:
(1a) the performance of any agreements as in effect as of the Closing Date or the consummation of any transaction contemplated thereby (including pursuant to any amendment thereto so long as any such Affiliate Transaction amendment is on not disadvantageous to the Holders of the Notes in any material respect);
(b) transactions (i) the terms that of which are not materially less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been be obtained in a comparable arm’s length transaction by with a Person that is not an Affiliate of the Company or such Restricted Subsidiary and (ii) with an unrelated Person; and
(2) respect to which the Company delivers to the Trustee:
Trustee (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million10,000,000, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors of the Company, and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions (other than any Affiliate Transaction with Cincinnati Bell Technology Solutions Inc.) involving aggregate consideration in excess of $25.0 million30,000,000, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction to the Company from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.Independent Qualified Party;
(bc) The following items will not be deemed payment of customary compensation to be Affiliate Transactions andofficers, thereforeemployees, will not be subject consultants and investment bankers for services actually rendered to the provisions of Section 4.11(a):Company or such Restricted Subsidiary, including indemnity;
(1d) any employment agreementpayment of director’s fees plus expenses and customary indemnification of directors;
(e) the payment of the fees, employee benefit plan, officer expenses and director indemnification agreement, consulting agreement or any similar arrangement entered into other amounts payable by the Company or any of and its Restricted Subsidiaries in connection with the ordinary course offering of businessthe Notes;
(2f) Restricted Payments permitted by Section 5.02 and Permitted Investments;
(g) transactions (including a mergerx) between or among the Company and its Restricted Subsidiaries, (y) between and among the Restricted Subsidiaries and (z) between or among the Company and/or its Restricted SubsidiariesSubsidiaries pursuant to the Centralized Cash Management System;
(3h) transactions with a Person (other than an Unrestricted Subsidiary any licensing agreement or similar agreement entered into in the Ordinary Course of Business relating to the use of technology or intellectual property between any of the Company) that Company and its Subsidiaries, on the one hand, and any company or other Person which is an Affiliate of the Company solely because or its subsidiaries by virtue of the fact that Person has made an Investment in or owns any Capital Stock of such company or other Person which are fair to the Company ownsor its Restricted Subsidiaries, directly in the reasonable determination of the Board of Directors, or through a Restricted Subsidiary, are on terms at least as favorable as might reasonably have been obtained at such time from an Equity Interest in such Personunaffiliated party;
(4i) payment of reasonable directors’ fees;
(5) any the issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting payments, awards or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely grants, in its capacity as a holder of debt cash or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of otherwise, pursuant to, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendmentfunding of, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined employment arrangements approved by the Board of Directors of the Company in good faith and customary loans and advances to employees of the Company), or any Restricted Subsidiary of the Company to the extent otherwise permitted in this Indenture;
(10j) payments made sale of services by the BRCOM Group to the Company and its Restricted Subsidiaries, so long as the prices for such services are consistent with past practices, are upon terms which are not less favorable to the Company or such Restricted Subsidiary than would be obtained in fulfillment a comparable arm’s length transaction with a Person that is not an Affiliate of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12k) a transaction transactions permitted under Sections 5.06(f) and 5.06(k) of the 16% Notes Indenture, as such Sections may be amended from time to time, and transactions permitted under the indenture governing the 7 1/4% Notes or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice8 3/8% Notes.
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless:
(1) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 2.5 million, a resolution of the Board of Directors set forth in an Officers’ Officer's Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsDirectors of the Company; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 5.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) . The following items transactions will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):the prior paragraph:
(1) any compensation arrangement, employment agreement, employee benefit plan, equity-based incentive plan, bonus plan, expense reimbursement plan, severance arrangement, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary payment 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 such Personreasonable directors' fees;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of this Indenture described above under Section 4.07 hereof and Permitted Investments4.07;
(75) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) payments and transactions effected pursuant to agreements any agreement or arrangement in effect on the date of this Indenture and any amendment, modification, amendment thereto or replacement renewal thereof to the extent that any such agreement (so long as the amendment, modification amendment or replacement renewal is not materially more disadvantageous to the Holders of the NotesNotes than the original agreement or arrangement in effect on the date of this Indenture;
(6) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(7) any issuance or sale of shares of Capital Stock (other than Disqualified Stock) for cash at Fair Market Value; and
(8) transactions with customers, taken as a wholesuppliers or purchasers or sellers of goods or services, as determined by 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 in the reasonable determination of the Board of Directors of the Company);
(10) payments made or are on terms no less favorable than would be available in fulfillment of the Company’s obligations arising in connection a comparable transaction with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicean unrelated third party.
Appears in 1 contract
Sources: Indenture (National Coal Corp)
Transactions with Affiliates. (a) The Company will H▇▇▇▇ and the Issuer shall not, and will shall not permit any of its their respective Restricted Subsidiaries to, make directly or indirectly, conduct any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, business or enter into or make suffer to exist any transaction or amend series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any transaction, contract, agreement, understanding, loan, advance Property or guarantee the rendering of any service) with, or for the benefit of, any Affiliate of H▇▇▇▇ or the Company Issuer (each an “Affiliate Transaction”), unless:
(1a) the terms of such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiaryare:
(1) set forth in writing, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) no less favorable to H▇▇▇▇, the Company delivers to Issuer or such Restricted Subsidiary, as the Trustee: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 H▇▇▇▇, the Issuer or such Restricted Subsidiary,
(Ab) with respect to any if such Affiliate Transaction involves aggregate payments or series of related Affiliate Transactions involving aggregate consideration value in excess of $15.0 5 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by of the Issuer (including at least a majority of the disinterested members of the Board of Directors; Directors of the Issuer) approves such Affiliate Transaction and, in its good faith judgment, concludes that such Affiliate Transaction complies with clause (a)(2) of the first paragraph of this Section 4.15 as evidenced by a Board Resolution of the Issuer promptly delivered to the Trustee, and
(Bc) with respect to any if such Affiliate Transaction involves aggregate payments or series of related Affiliate Transactions involving aggregate consideration value in excess of $25.0 25 million, H▇▇▇▇ or the Issuer obtains a written opinion from an opinion as Independent Financial Advisor to the fairness effect that the consideration to the Company be paid or such Subsidiary of received in connection with such Affiliate Transaction is fair, from a financial point of view issued by an accountingview, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions andH▇▇▇▇, thereforethe Issuer and the Restricted Subsidiaries. Notwithstanding the foregoing limitation, will not be subject to H▇▇▇▇, the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Issuer or any of its their respective Restricted Subsidiaries may enter into or suffer to exist the following:
(a) any transaction or series of transactions between H▇▇▇▇ and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary course of businessbusiness including transactions effected in connection with H▇▇▇▇’ tax planning, including the making of secured or unsecured intercompany loans not otherwise prohibited by the terms of this Indenture, provided that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of H▇▇▇▇ or the Issuer (other than H▇▇▇▇, the Issuer or a Restricted Subsidiary);
(2b) transactions (including a merger) between any Restricted Payment permitted to be made pursuant to Section 4.10 or among the Company and/or its Restricted Subsidiariesany Permitted Investment;
(3c) 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 such Person;
(4) payment of reasonable directors’ fees;
compensation (5including amounts paid pursuant to employee benefit plans) any issuance for the personal services of Equity Interests (other than Disqualified Stock) officers, directors and employees of H▇▇▇▇, the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company Issuer or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s their respective Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Issuer 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;
(10d) payments made agreements in fulfillment effect on the Issue Date and described in the final offering memorandum regarding the Initial Notes, dated as of May 16, 2007, and any modifications, extensions or renewals thereto that are no less favorable to H▇▇▇▇, the Company’s obligations arising Issuer or any Restricted Subsidiary than such agreements as in effect on the Issue Date;
(e) any customary transactions between or among any of H▇▇▇▇, the Issuer, any Restricted Subsidiary and any Securitization Entity in connection with the ESSI Mergera Qualified Securitization Transaction, in each case provided that such transactions are not otherwise prohibited by terms of this Indenture;
(11f) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a any transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, supply or similar agreements or other arrangements entered into in existence on the date hereof ordinary course of business and consistent with past practicepractice on customary terms, as determined by the Issuer in its good faith judgment; and
(g) any transaction or series of transactions between H▇▇▇▇, the Issuer or any of their Restricted Subsidiaries with any joint venture that constitutes an Affiliate solely by virtue of H▇▇▇▇’, the Issuer’s or any Restricted Subsidiary’s control of such joint venture.
Appears in 1 contract
Sources: Indenture (Hli Operating Co Inc)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company any such Person (each each, an “Affiliate Transaction”)) if such Affiliate Transaction involves aggregate consideration in excess of $1.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated PersonPerson or, if no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view, as evidenced by the delivery of the Officers’ Certificate provided for in clause (2) below; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0 million but less than $25.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (1) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directorsabove; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, a resolution of its Board of Directors set forth in an opinion as to the fairness to the Company or such Subsidiary of Officers’ Certificate certifying that such Affiliate Transaction from complies with clause (1) above and that such Affiliate Transaction has been approved by a financial point majority of view issued by an accounting, appraisal or investment banking firm the disinterested members of national standingits Board of Directors.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):paragraph (a) of this Section:
(1) any employment employment, equity award, equity option or equity appreciation agreement, plan agreement or similar compensation arrangement, employee benefit plan, officer and Officer or director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and consistent with past practices and payments pursuant thereto;
(2) fees and compensation paid to, and indemnity provided on behalf of, Officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacity as such, to the extent such fees and compensation are reasonable and customary;
(3) loans or advances to employees in the ordinary course of business and consistent with past practices, but in any event not to exceed $1.0 million in the aggregate outstanding at any one time;
(4) transactions (including a merger) between or among (i) the Company and/or and one or more of its Restricted Subsidiaries and (ii) any Restricted Subsidiaries;
(35) 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, owns an Equity Interest in in, or controls, such Person;
(46) payment of reasonable directors’ fees;
(5) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of its Restricted Subsidiaries;
(7) Restricted Payments that are permitted pursuant to Section 4.07 (“Restricted Payments”) hereof; and
(8) the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder performance of debt or capital stock obligations of the Company or any of its Restricted Subsidiaries under the Company’s Restricted Subsidiaries;
(8) the existence terms of or the performance by any agreement to which the Company or any of the Company’s its Restricted Subsidiaries with is a party as of the Issue Date, and any amendments, modifications, supplements, extensions or renewals of its obligations under the terms of any stockholders or similar agreement those agreements entered into after the Issue Date; provided that, such amendments, modifications, supplements, extensions or renewals do not, in connection with any material respects, adversely affect the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notesrights, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment holders of the Company’s obligations arising notes as compared to the terms of the agreement in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence effect on the date hereof and consistent with past practiceIssue Date.
Appears in 1 contract
Sources: Indenture (Pioneer Drilling Co)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”), unless:
(1i) such the Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million10,000,000 but no greater than $25,000,000, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directorscovenant; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million25,000,000, an opinion as to the fairness to the Company or such Subsidiary of Officers’ Certificate certifying that such Affiliate Transaction from or series of Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of Affiliate Transactions has been approved by a financial point majority of view issued by an accounting, appraisal or investment banking firm the disinterested members of national standingthe Board of Directors.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):3.8(a) above:
(1i) any Restricted Payment permitted to be made pursuant to Section 3.4;
(ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans and other reasonable fees, benefits and indemnities paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of business to or with officers, directors or employees of the Company and its Restricted Subsidiaries;
(iii) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed $2,000,000;
(iv) any transaction between the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries;
(v) the payment of reasonable and customary fees or compensation paid to, and indemnity or liability insurance provided on behalf of, officers, directors or employees of the Company or any Restricted Subsidiary of the Company;
(vi) any reasonable employment or severance agreement or other employee compensation agreement, employee benefit arrangement or plan, officer and director indemnification agreement, consulting agreement or any similar arrangement amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Venoco, Inc.)
Transactions with Affiliates. (a) The Company will Issuers shall not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer transfer, exchange or otherwise dispose of any of its their properties or assets to, or purchase any property or assets from, or enter into or make or amend any transactiontransaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate Affiliate, officer or director of the Company Issuers (each each, an “"Affiliate Transaction”"), unless:
: (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Issuers or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuers or such Restricted Subsidiary with an unrelated PersonPerson (as determined by the Board of Directors and evidenced by a resolution of the Board of Directors); and
and (2b) the Company delivers Issuers deliver to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 10.0, million, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
and (Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 20.0 million, an opinion as to the fairness to the Company or such Subsidiary Issuers of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
; provided, however, that this clause (bii) The shall not apply to any transaction between or among the Company, Insight Communications, AT&T Broadband, LLC and their respective Subsidiaries; provided, however, that the following items will shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of this Section 4.11(a):
4.11: (1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Issuers or any of its their Restricted Subsidiaries in the ordinary course of business;
business and consistent with the past practice of the Issuers or such Restricted Subsidiary, (2ii) transactions (including a merger) between or among the Company Issuers and/or its their Restricted Subsidiaries;
, (3iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company Issuers solely because the Company owns, directly or through a Restricted Subsidiary, an Issuer owns an Equity Interest in such Person;
, (4iv) payment of reasonable directors’ fees;
directors fees to Persons who are not otherwise Affiliates of the Issuers, (5v) any issuance sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
Issuers, (6vi) Restricted Payments that do not violate the provisions of are permitted under Section 4.07 hereof and Permitted Investments;
hereof; (7vii) if such Affiliate Transaction is with payment of management fees to Insight Communications Company, L.P. pursuant to the Management Agreements, (viii) any Person solely in its capacity as a holder of debt transactions or capital stock of the Company arrangements entered into, or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under payments made, pursuant to the terms of the Kentucky Credit Facility or the Indiana Credit Facility, (ix) Permitted Investments, (x) any stockholders transactions or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof hereof, including, without limitation, the Asset Contribution Agreement and consistent all such other agreements, amendments and documents as may be necessary or desirable to perform and carry out the transactions contemplated by the Asset Contribution Agreement; and (xi) any arrangement with past practiceaffiliates of Source Media, Inc. for the distribution of cable television services or programming.
Appears in 1 contract
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person and (2b) the Company delivers to the Trustee:
(A) , with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 7.5 million, either (i) a resolution of the Board board of Directors directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board board of Directors; and
directors or (Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The . Notwithstanding the foregoing, the following items will shall not be deemed to be Affiliate Transactions andTransactions: (a) customary directors' fees, therefore, will not be subject to the provisions of Section 4.11(a):
(1) indemnification or similar arrangements or any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business (2including, without limitation, ordinary course loans to employees not to exceed (i) $5.0 million outstanding in the aggregate at any time and (ii) $2.0 million to any one employee) and consistent with the past practice of the Company or such Restricted Subsidiary; (b) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
; (3c) transactions with a Person (other than an Unrestricted Subsidiary payments 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 such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance customary fees by the Company or any of the Company’s its Restricted Subsidiaries with to DLJMB and its Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of its obligations under the terms of any stockholders or similar agreement entered into other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which are approved by a majority of the ESSI Merger;
board of directors in good faith; (9d) transactions effected pursuant to agreements any agreement as in effect on the date of this Indenture and Original Issuance Date or any amendment, modification, or replacement to such agreement amendment thereto (so long as the amendment, modification or replacement such amendment is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
Notes in any material respect) or any transaction contemplated thereby; (10e) payments made in fulfillment of the Company’s obligations arising and transactions in connection with the ESSI Merger;
Acquisition (11including, without limitation, any purchase price adjustment or any other payments made pursuant to the Acquisition Agreement or the Financial Advisory Agreements or the Termination Agreements) reasonable and documented attorney’s the Acquisition Financing, the New Credit Facility (including, without limitation, commitment, syndication and arrangement fees payable thereunder) and the Offering (including, without limitation, underwriting discounts and commissions in connection therewith) and the application of the proceeds thereof, and the payment of the fees and expenses paid in consideration for services renderedwith respect thereto; and
(12f) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date Restricted Payments that are permitted by Section 4.07 hereof and consistent any Permitted Investments; (g) payments and transactions in connection with past practiceany GTP Investment or GTP Loan, and the payment of fees and expenses with respect thereto; (h) any issuance of capital stock of the Company to GTP other than Disqualified Stock; and (i) sales of accounts receivable, or participations therein, in connection with any Receivables Facility.
Appears in 1 contract
Sources: Indenture (Condor Systems Inc)
Transactions with Affiliates. (a) The Company will Venture shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Affiliates (each each, an “Affiliate Transaction”), unless:
: (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company Venture or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Venture or such Restricted Subsidiary with an unrelated Person; and
and (2b) the Company Venture delivers to each Partner that is not an Affiliate of the Trusteeparty to the Affiliate Transaction:
(Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million1,000,000, a resolution certificate of the Board of Directors set forth in an Officers’ Certificate certifying Managing Partner to the effect that such Affiliate Transaction complies with this Section 4.11(a) 2.13 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of DirectorsManaging Partner; and
(Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million5,000,000, an opinion as to the fairness to the Company or such Subsidiary Venture of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
. The foregoing provisions of this Section 2.13 shall not apply to the following: (a) payments made pursuant to, or any other transactions contemplated by, the Management Agreement; (b) The following items will not purchases of goods and services in the ordinary course of business on terms that are no less favorable to the Venture or its Subsidiaries than would be deemed reasonably expected to be Affiliate Transactions and, therefore, will obtained from an unrelated third party and in an amount not be subject to exceed $1,000,000 per year; (c) transactions between or among the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer Venture and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries Subsidiaries; (d) Additional Capital Contributions or distributions permitted by the terms of this Agreement; (e) reasonable fees and compensation (including bonuses, retirement plans and securities, stock options and stock ownership plans) paid or issued to and indemnities provided on behalf of officers, directors, employees or consultants of the Venture or any Subsidiary in the ordinary course of business;
; and (2f) transactions (including a merger) between or payments of principal, premium, if any, and interest on the First Mortgage Notes made in accordance with Section 4.01 of the Amended and Restated Indenture, dated as of July 21, 2005 by and among the Company and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Venture, Capital, the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect guarantors listed on the date of this Indenture signature page thereof and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a wholeU.S. Bank National Association, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practicetrustee.”
Appears in 1 contract
Transactions with Affiliates. Directly or indirectly:
(a) The Company will notPurchase, and will not permit acquire or lease any of its Restricted Subsidiaries to, make any payment toproperty from, or sell, lease, transfer or otherwise dispose of lease any of its properties or assets property to, any officer, shareholder, director or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any other Affiliate of the Company (each an “Affiliate Transaction”)Lead Borrower or any Restricted Subsidiary involving aggregate consideration in excess of $50,000,000 for a single transaction or series of related transactions, unlessexcept:
(1i) such Affiliate Transaction is on fair and reasonable terms that are not materially less favorable to the Company or the relevant Lead Borrower and its Restricted SubsidiarySubsidiaries, taken as a whole, than those that as would have been obtained in a comparable transaction be obtainable by the Company Lead Borrower or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in with a Person other than an Affiliate at the ordinary course time of businesssuch transaction (or, if earlier, at the time such transaction is contractually agreed),
(ii) Real Estate leased by the Lead Borrower and its Restricted Subsidiaries from the Real Estate Subsidiaries,
(iii) Real Estate leased by the Lead Borrower and its Restricted Subsidiaries from the Sponsor (or its Affiliates) on the Restatement Effective Date;
(2iv) Permitted Dispositions and Permitted Investments;
(v) transactions (including a merger) between or among the Company and/or Lead Borrower and its Restricted SubsidiariesSubsidiaries or any Person that becomes a Restricted Subsidiary or is merged or consolidated with a Restricted Subsidiary as a result of such transaction;
(3vi) transactions to effect the Transactions, the Safeway Transactions, the Eastern Division Transactions and the Restatement Effective Date Transactions;
(vii) transactions for which the board of directors has received a written opinion from an Independent Financial Advisor to the effect that the financial terms of such transaction are fair, from a financial standpoint, to the Albertson’s Group or not less favorable to the Albertson’s Group than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate;
(viii) any agreement (other than an Unrestricted Subsidiary with Sponsor) as in effect as of the CompanyRestatement Effective Date and set forth on Schedule 7.09 or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Restatement Effective Date) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Personany transaction contemplated thereby;
(4i) payment of reasonable directors’ fees;
(5) any the issuance of Equity Interests (other than Disqualified Stock) of a Borrower to any director, officer, employee or consultant thereof, (ii) the Company to Affiliates issuance of the Company Equity Interests of the Lead Borrower and the granting or performance of registration rightsrights and other customary rights in connection therewith or (iii) any contribution to the capital of the Lead Borrower or any Restricted Subsidiary, as applicable;
(6x) Restricted Payments (x) transactions with Affiliates that do not violate are customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the provisions ordinary course of Section 4.07 hereof business and Permitted Investmentsotherwise in compliance with the terms of this Agreement, which are fair to the Albertson’s Group in the reasonable determination of the board of directors or the senior management of the Lead Borrower, and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (y) transactions with joint ventures and Unrestricted Subsidiaries in the ordinary course of business;
(7xi) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of of, or the performance by the Company or any of the CompanyAlbertson’s Restricted Subsidiaries with any Group 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 Restatement Effective Date and any amendment thereto or similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Albertson’s Group of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Restatement Effective Date shall only be permitted by this clause (xi) 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 Lenders in any material respect than the original agreement as in effect on the Restatement Effective Date;
(xii) transactions between the Loan Parties or any of their Restricted Subsidiaries and any Person that is an Affiliate solely due to the fact that a director of such Person is also a director of the Lead Borrower or any other direct or indirect parent of a Borrower; provided, however, that such director abstains from voting as a director of such Borrower or such direct or indirect parent of such Borrower, as the case may be, on any matter involving such other Person;
(xiii) [Reserved];
(xiv) transactions pursuant to Section 7.04 and 7.06;
(xv) transactions required pursuant to contingent value rights agreements entered into in connection with the ESSI MergerSafeway Merger Agreement;
(9xvi) [Reserved];
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) transactions effected entered into in good faith which provide for shared employees, services and/or facilities arrangements and which provide cost savings and/or other operational efficiencies;
(xix) [Reserved];
(xx) [Reserved];
(xxi) any purchases by the Lead Borrower’s Affiliates of Indebtedness or Disqualified Stock of a Borrower or any of its Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Lead Borrower’s Affiliates; provided that such purchases by the Lead Borrower’s Affiliates are on the same terms as such purchases by such Persons who are not the Lead Borrower’s Affiliates;
(xxii) transactions contractually agreed to between an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary and not entered into in contemplations thereof; and
(xxiii) transactions permitted by clause (b) below.
(b) make any payments (whether by dividend, loan or otherwise) to any officer, shareholder, director or other Affiliate of a Borrower or any Restricted Subsidiary in excess of $50,000,000 for a single payment or series of related payments, including, without limitation, on account of management, consulting or other fees for management or similar services, or pay or reimburse expenses incurred by any officer, shareholder, director or other Affiliate of such Borrower or such Restricted Subsidiary, except:
(i) reasonable compensation to, and indemnity provided on behalf of, current, former and future officers, employees and directors for services rendered to such Borrower or such Restricted Subsidiary in the ordinary course of business (including the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of any direct or indirect parent of a Borrower or of a Restricted Subsidiary, as appropriate, in good faith);
(ii) [Reserved];
(iii) payments by such Borrower or a Restricted Subsidiary to Sponsor or an Affiliate of Sponsor for the reasonable out-of-pocket costs of actual and necessary reasonable out-of-pocket legal and accounting, insurance, marketing financial and similar types of services paid for by Sponsor or such Affiliate on behalf of such Borrower or a Restricted Subsidiary;
(iv) any payments required to be made pursuant to agreements an agreement (other than with Sponsor) as in effect as of the Restatement Effective Date and listed on the date of this Indenture and any amendment, modificationSchedule 7.09, or replacement to such agreement any amendment thereto (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notesany such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as determined in effect on the Restatement Effective Date) or any transaction contemplated thereby;
(v) [Reserved];
(vi) amounts payable pursuant to employment and severance arrangements between Albertson’s Group and their respective current, former and future officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business and payments or loans (or cancellation of loans) to employees or consultants in the ordinary course of business which are approved by a majority of the Board of Directors of the Company)Lead Borrower in good faith;
(10vii) payments by the Albertson’s Group to the Sponsor made for any financial advisory, financing, underwriting or placement services or in fulfillment respect of the Company’s obligations arising other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the ESSI MergerBoard of Directors of the Lead Borrower or any other direct or indirect parent of the Lead Borrower in good faith;
(11viii) reasonable amounts payable pursuant to each Management Services Agreement, including any guarantees of compensation to Service Provider Personnel (as defined in the applicable Management Services Agreement) up to the amounts payable thereunder;
(ix) the Restatement Effective Date of Transaction Payments;
(x) [Reserved];Restricted Payments pursuant to the Rite Aid Acquisition Agreement;
(xi) payments resulting from transactions for which the board of directors has received a written opinion from an Independent Financial Advisor to the effect that the financial terms of such transaction are fair, from a financial standpoint, to the Albertson’s Group or not less favorable to the Albertson’s Group than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a Person who was not an Affiliate;
(xii) payments permitted pursuant to Section 7.02 and documented attorney’s fees 7.06 and, in the case of Section 7.06(i), the entering into of any tax sharing agreement or arrangement with respect to any such payments;
(xiii) sales and expenses paid purchase arrangements, joint purchasing arrangements and other service agreements in consideration the ordinary course of business between, on the one hand, the Lead Borrower and its Restricted Subsidiaries and, on the other hand, any Person under common control with the Lead Borrower and its Subsidiaries, for services renderedthe sale and purchase, at cost, of inventory, equipment and supplies, and leases between such Persons and the Lead Borrower or any of its Restricted Subsidiaries and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(xiv) payments between or among the Lead Borrower and its Restricted Subsidiaries; and
(12xv) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contractsany agreement, agreements arrangement or other arrangements in existence on transaction permitted under clause (a) above; and
(xvi) transactions pursuant to the date hereof and consistent with past practiceRite Aid Acquisition Agreement.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Transactions with Affiliates. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into, renew or extend any payment totransaction or arrangement with a value of more than $1,000,000, including the purchase, sale, lease or exchange of property or assets, or sell, lease, transfer the rendering of any service with any Affiliate of Borrower or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Subsidiaries (each an a “Affiliate Related Party Transaction”), unless:
(1) such Affiliate unless the Related Party Transaction is on terms that are not materially less favorable (as reasonably determined by Borrower) to Borrower or its relevant Subsidiary than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of Borrower or such Subsidiary, as applicable.
(b) Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, enter into, renew or extend any transaction or arrangement with an Affiliate of Borrower or any of its Subsidiaries for the prepayment of products or services (1) except in the ordinary course of business or (2) so long as such prepayment will not adversely affect the value or the priority of the First Priority Collateral in any material respect or have any material effect on the calculation of Consolidated Adjusted EBITDA.
(c) Any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $20,000,000 must first be approved by a majority of the Board of Directors who are disinterested in the subject matter of the transaction pursuant to a Board Resolution. Prior to entering into any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $40,000,000, Borrower must in addition obtain the written consent of Oaktree.
(d) The foregoing paragraphs do not apply to:
(i) any transaction between Borrower and any of its Subsidiaries or between Subsidiaries of Borrower; provided that such transaction (1) does not result in any decrease in the value of the First Priority Collateral as compared to the Company value of such First Priority Collateral immediately prior to the date of the proposed transaction and (2) is entered into in the ordinary course of business;
(ii) the payment of fees to directors of Borrower who are not employees of Borrower;
(iii) any Restricted Payments permitted under this Agreement and Investments that constitute Permitted Investments specified in clauses (p) and (q) of the definition thereof;
(iv) any issuance of Equity Interests (other than Disqualified Equity Interests) of Borrower;
(v) loans or advances to officers, directors or employees of Borrower in the ordinary course of business of Borrower or its Subsidiaries or guarantees in respect thereof or otherwise made on their behalf (including payment on such guarantees) and only to the extent permitted by applicable law, including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
(vi) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by Borrower or any of its Subsidiaries with officers and employees of Borrower or any of its Subsidiaries that are Affiliates of Borrower and the payment of compensation to such officers and employees (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) so long as such agreement has been entered into in the ordinary course of business;
(vii) transactions with a Person that is an Affiliate solely because Borrower, directly or through a Subsidiary of Borrower, owns Equity Interests in such Person or owes Indebtedness to such Person;
(viii) transactions with customers, clients, suppliers or purchasers or seller of goods or services, in each case in the ordinary course of business;
(ix) transactions between Borrower or any of its Subsidiaries and any Joint Venture or other Subsidiary of Borrower entered into in the ordinary course of business; provided that such transactions are on terms that are no less favorable to Borrower or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Borrower or such Restricted Subsidiary with an unrelated Person;
(x) transactions arising under any contract, agreement, instrument or arrangement in effect on the Closing Date, as amended, modified or replaced from time to time so long as the amended, modified or new contract, agreement, instrument or arrangement is not materially less favorable to Borrower and its Subsidiaries than that in effect on the Closing Date; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2xi) transactions (including a merger) between or among pursuant to this Agreement, 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company Financing Agreements and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceWarrants.
Appears in 1 contract
Sources: Credit Agreement (Molycorp, Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “"Affiliate Transaction”"), unless:
(1i) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2ii) the The Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 5.0 million, a resolution of the Board of Directors Resolution set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11(a) 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary Holders of Notes of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of the paragraph (a) of this Section 4.11(a):4.11:
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness and consistent with past practice of the Company or such Restricted Subsidiary;
(2ii) transactions (including a merger) between or among the Company and/or a Wholly-Owned Restricted Subsidiary and/or its Wholly-Owned 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 Equity Interest in such Person;
(4iii) payment of reasonable directors’ directors fees, expenses and indemnification to Persons who are not otherwise Affiliates of the Company;
(5iv) any issuance Restricted Payments that are not prohibited by the provisions of Section 4.7;
(v) sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6vi) Restricted Payments that do not violate transactions pursuant to the provisions of Section 4.07 hereof Service Agreement by and Permitted Investmentsbetween Horizon Services, Inc. and Horizon Personal Communications, Inc. and 57 pursuant to the Service Agreement by and between Horizon Services, Inc. and Bright Personal Communications Services, LLC, as such agreements exist immediately prior to the Issue Date;
(7vii) if transactions pursuant to the Services Agreement by and between Horizon Personal Communications, Inc. and United Communications, Inc., as such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of agreement exists immediately prior to the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted SubsidiariesIssue Date;
(8) viii) payments of amounts due under the existence of or lease between the performance Company and The Chillicothe Telephone Company, as such lease exists immediately prior to the Issue Date;
(ix) payments by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms Horizon Personal Communications, Inc. of any stockholders amounts due pursuant to the Amended and Restated Tax Allocation Agreement dated as of May 1, 2000 by and among Horizon Telcom and its Subsidiaries, as such agreement exists immediately prior to the Issue Date;
(x) sales of accounts receivable, or similar agreement entered into participations therein, in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedReceivables Facility; and
(12xi) a transaction or series transactions with an investor in the investor group led by Apollo Management in accordance with the agreements governing the sale by the Company of transactions involving payments not in excess of $5.0 million made pursuant to contractsthe Convertible Preferred Stock including the Securities Purchase Agreement, the Registration Rights Agreement and the Investors' Rights and Voting Agreement as such agreements or other arrangements in existence exist on the date hereof and consistent Issue Date or in accordance with past practicethe certificate of incorporation or bylaws of the Company, as each exists immediately prior to the Issue Date.
Appears in 1 contract
Sources: Indenture (Horizon PCS Inc)
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or 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 $5.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated PersonPerson on an arm’s-length basis; and
(2) the Company Issuer delivers to the Trustee:
(A) Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of (i) $15.0 10.0 million, a resolution of adopted by the Board of Directors of the Issuer approving such Affiliate Transaction or series of related Affiliate Transactions, as the case may be, and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of Transactions, as the case may be, complies with clause (a) above and (b) $25.0 million, an opinion as to the fairness to the Company or such Subsidiary holders of such Affiliate Transaction or series of related Affiliate Transactions, as the case may be, from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingIndependent Financial Advisor.
(b) The following items foregoing provisions will not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 4.11(a):following:
(1) transactions between or among the Issuer and/or any employment agreementof the Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 3.3 and the definition of “Permitted Investments”;
(3) the payment of reasonable fees and compensation paid to, employee benefit planand indemnities provided on behalf of (and entering into related agreements with), officer and director indemnification agreementofficers, consulting agreement directors, employees or consultants of the Issuer, any of its direct or indirect parents or any similar arrangement entered into Restricted Subsidiary;
(4) payments by the Company Issuer or any of its the Restricted Subsidiaries 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 Directors of the Issuer in good faith;
(5) transactions in which the Issuer 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 Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(6) payments or loans (or cancellation of loans) to employees or consultants of the Issuer, any of its direct or indirect parents or any Restricted Subsidiary which are approved by the Board of Directors of the Issuer in good faith;
(7) 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 to the Holders in any material respect) or payments made thereunder or the performance thereof or any transaction contemplated thereby;
(8) the existence of, or the performance by the Issuer or any Restricted Subsidiaries of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause (8) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respects;
(9) the Acquisitions and the payment of all fees and expenses related to the Acquisitions, in each case as disclosed in the Offering Memorandum;
(10) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of businessbusiness and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time in arm’s length negotiations with an unaffiliated third party;
(2) transactions (including a merger) between or among the Company and/or its Restricted Subsidiaries;
(311) transactions with a Person (other than an Unrestricted Subsidiary of the CompanyIssuer) that is an Affiliate of the Company Issuer solely because the Company owns, directly Issuer or through a Restricted Subsidiary, Subsidiary of the Issuer owns an Equity Interest in or otherwise controls such Person; provided that such Affiliate is not an Affiliate of any Permitted Holder other than due to the Issuer’s ownership of any Equity Interest, or control, of such Affiliate;
(412) payment any purchases by the Issuer’s Affiliates of reasonable directors’ feesIndebtedness or Disqualified Stock of the Issuer or any of its Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Issuer’s Affiliates; provided that such purchases by the Issuer’s Affiliates are on the same terms as such purchases by such Persons who are not the Issuer’s Affiliates;
(513) any issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company Issuer and the granting or performance of registration rights;and other customary rights in connection therewith or any contribution to capital of direct or indirect parent companies, the Issuer or any Restricted Subsidiary; and
(614) Restricted Payments that do not violate the provisions any issuance of Section 4.07 hereof and Permitted Investments;
securities, or other payments or loans (7) if such Affiliate Transaction is with any Person solely or cancellation of loans), awards or grants in its capacity as a holder of debt cash, securities or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of otherwise pursuant to, or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture funding of, employment arrangements, stock options and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined stock ownership plans approved by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceIssuer.
Appears in 1 contract
Sources: Indenture (Bankrate, Inc.)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, exchange, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “Affiliate Transaction”), involving an amount in excess of the greater of (x) $2.5 million and (y) 5.0% of Consolidated Cash Flow for the most recently ended four full fiscal quarters for which internal financial statements are available, unless:
(1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by at the Company or such Restricted Subsidiary time in an arm’s-length transaction with a person who was not an unrelated PersonAffiliate; and
(2b) the Company delivers to the Trustee:
(A) with respect to any if such Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration involves an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of either the Conflicts Committee of the Board of Directors of the Company or the Board of Directors of the Company disinterested with respect to such Affiliate Transaction has determined in good faith that the criteria set forth in clause (a) of this Section 5.11 are satisfied and has approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of Certificate. The foregoing provisions shall not apply to the disinterested members of the Board of Directors; andfollowing:
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement loan or any similar compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary;
(2ii) transactions (including a merger) exclusively between or among the Company and/or its Restricted Subsidiaries; provided that such transactions are not otherwise prohibited by this Indenture;
(3iii) transactions any agreement existing on the date of this Indenture, as in effect on the date of this Indenture, or as modified, amended or amended and restated by any modification, amendment or amendment and restatement made in compliance with a Person the applicable provisions of clauses (other than an Unrestricted Subsidiary a) and (b) of the Companythis Section 5.11;
(iv) that is an Affiliate reasonable compensation of, and indemnity arrangements in favor of, managers of the Company solely because the Company owns, directly or through a and its Restricted Subsidiary, an Equity Interest in such PersonSubsidiaries;
(4v) payment the issuance or sale of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or any Parent Entity and the granting or performance of registration rightsand other customary rights in connection therewith;
(6vi) pledges of Equity Interests of Unrestricted Subsidiaries; and
(vii) Restricted Payments that do not violate the provisions of are permitted by Section 4.07 hereof 5.07 and Permitted Investments;
Investments of the type described in clause (7) if such 8) of the definition thereof. Notwithstanding anything to the contrary in this Section 5.11 or in this Indenture, the Company will not, and will not permit any of its Restricted Subsidiaries to, invest any Trust Funds in any Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s its Restricted Subsidiaries where such or in any fund, asset or Person is treated no more favorably than controlled or managed by any other holder of debt or capital stock Affiliate of the Company or any of the Company’s its Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Stonemor Inc.)
Transactions with Affiliates. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Borrower (each each, an “"Affiliate Transaction”"), unless:
(1i) such the Affiliate Transaction Transaction, taken as a whole with all other related Affiliate Transactions, is on terms that are not materially no less favorable to the Company or the relevant Restricted SubsidiaryBorrower and its Subsidiaries, taken as a whole, than those that would have been obtained in a comparable transaction by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and
(2ii) the Company Borrower delivers to the Trustee:Administrative Agent (other than with respect to a Shared Facilities Arrangement between or among only the Borrower and/or any of its Subsidiaries):
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million10,000,000 but less than or equal to $25,000,000, a resolution of the Board of Directors set forth in an Officers’ Officer's Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) 5.8 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million25,000,000, an a positive opinion as to the fairness to the Company or such Subsidiary Fair Market Value of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will shall not be deemed to be Affiliate Transactions and, therefore, will shall not be subject to the provisions of Section 4.11(a5.8(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(2ii) transactions (including a merger) between or among the Company Borrower and/or its Restricted Subsidiariesany of the Guarantors (other than Shared Facilities Arrangements);
(3iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company Borrower (but not a Subsidiary of the Borrower) solely because the Company Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4iv) payment of reasonable directors’ fees' fees to Persons who are not otherwise Affiliates of the Borrower;
(5v) any issuance of Equity Interests (other than Disqualified Stock) of the Company Borrower to Affiliates of the Company and Borrower; provided that such Equity Interests are included in the granting or performance of registration rightsCollateral;
(6vi) Restricted Payments that do not violate the provisions of this Agreement as described in Section 4.07 hereof and Permitted Investments5.4 (Restricted Payments);
(7vii) if such Affiliate Transaction is with loans or advances to employees in the ordinary course of business not to exceed $1,000,000 in the aggregate at any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiariesone time outstanding;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Mergerviii) Permitted Tax Payments;
(9ix) transactions effected under or pursuant to written agreements with Affiliates of the Borrower in effect on place as of the date of this Indenture and Agreement or any amendmentamendment or modification thereto, modification, or replacement to such agreement (so long as any such amendment or modification meets the requirements of clause (x) or (xi) of this Section 5.8(b);
(x) any amendments or modifications of, or waivers under, any written agreement described under clause (ix) of this 5.8(b) that is not a Major Project Document; provided that no such amendment, modification or replacement waiver alters any such agreement in a manner than is not materially more disadvantageous adverse to the Holders interests of the Notes, taken as a whole, as determined by the Board of Directors of the Company)Lenders;
(10xi) payments made any amendments or modifications of, or waivers under, any Major Project Document, which are permitted by Section 5.10(b) (Business Activities) and are on terms that are no less favorable to the Borrower or its relevant Subsidiary (as certified to the Administrative Agent in fulfillment of an Officer's Certificate) than those that would have been obtained in a comparable transaction by the Company’s obligations arising in connection Borrower or such Subsidiary with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedan unrelated Person; and
(12xii) a transaction or series any agreement to do any of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceforegoing.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Transactions with Affiliates. (a) The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to exist any payment totransaction or series of related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any Affiliate of the Company its Affiliates (each each, an “Affiliate Transaction”)) involving aggregate consideration in excess of $2,500,000, unless:
other than (1x) such Affiliate Transaction is Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would might reasonably have been obtained in a comparable transaction by at such time on an arm’s length basis from a Person that is not an Affiliate of the Company Borrower or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions) involving aggregate payments or other property with a fair market value in excess of $10,000,000 shall be approved by the Board of Directors of the Borrower 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 such transaction complies with the foregoing provisions. If the Borrower or any Restricted Subsidiary of the Borrower enters into an Affiliate Transaction (or a series of related Affiliate Transactions) that involves an aggregate fair market value of more than $20,000,000, the Borrower or such Restricted Subsidiary, as the case may be, shall obtain an opinion as to the fairness of such transaction or series of related transactions to the Borrower 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 an unrelated Person; the Administrative Agent.
(b) The following shall not be deemed Affiliate Transactions and, therefore, the restrictions set forth in this Section 7.10 shall not apply to:
(1) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants or to professional corporations of which they are the owner of the Borrower or any Restricted Subsidiary of the Borrower as determined in good faith by the Borrower’s Board of Directors or senior management;
(2) transactions between or among the Company delivers Borrower and any of its Restricted Subsidiaries or between or among such Restricted Subsidiaries, provided that such transactions are not otherwise prohibited by this Agreement;
(3) the payment of management, consulting, monitoring and advisory fees and related expenses to the Trustee:Permitted Holders and the termination fees pursuant to the Management Agreement as in effect on April 20, 2010 or any amendment thereto (so long as such amendment is not less favorable to the Lenders in any material respect than the Management Agreement on April 20, 2010);
(A4) with respect any agreement as in effect as of the Closing 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 Lenders in any material respect than the original agreement as in effect on the Closing Date;
(5) Restricted Payments and Permitted Investments permitted by this Agreement;
(6) transactions with a Person that is an Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, a resolution of the Board Borrower solely because the Borrower owns, directly or indirectly, Capital Stock of, or controls, such Person; provided such Person does not control the Borrower;
(7) the pledge of Directors set forth Capital Stock of Unrestricted Subsidiaries to support Indebtedness thereof;
(8) issuances and sales of Capital Stock of the Borrower to Affiliates of the Borrower or the receipt of the proceeds of capital contributions in an Officers’ Certificate certifying that such Affiliate Transaction complies respect of Capital Stock;
(9) payments made by the Borrower or any Restricted Subsidiary to the Permitted Holders for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with this Section 4.11(a) and that such Affiliate Transaction has been acquisitions or divestitures, which payments are approved by a majority of the disinterested members members, if any, of the Board of Directors; andDirectors of the Borrower in good faith;
(B10) transactions with respect to any Affiliate Transaction customers, clients, suppliers, or series purchasers or sellers of related Affiliate Transactions involving aggregate consideration goods or services, in excess each case in the ordinary course of $25.0 million, an opinion as business and otherwise in compliance with the terms of the Loan Documents that are fair to the fairness to Borrower and its Restricted Subsidiaries, in the Company reasonable determination of the Board of Directors of the Borrower, or are on terms at least as favorable as would reasonably have been entered into at such Subsidiary of such Affiliate Transaction from a financial point of view issued by time with an accounting, appraisal or investment banking firm of national standing.unaffiliated party;
(b11) The following items will not be deemed to be Affiliate Transactions andthe existence of, therefore, will not be subject to or the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into performance by the Company Borrower or any of its Restricted Subsidiaries of its obligations under the terms of, the Shareholders Agreement (including any registration rights agreement or purchase agreements related thereto to which it was a party on the Closing Date and any similar agreement that it may enter into thereafter); provided, however, that the existence of, or the performance by the Borrower or any of its Restricted Subsidiaries of its obligations under, any future amendment to the Shareholders Agreement or under any similar agreement entered into after the Closing Date shall only be permitted by this clause (11) 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 Lenders in any material respect than the ordinary course of businessoriginal agreement as in effect on the Closing Date;
(212) transactions (including a merger) between Purchases or among payments for professional liability and other insurance by the Company and/or Borrower, its Restricted Subsidiaries;
(3) transactions with a , their respective employees or any Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because Borrower to Batan Insurance in the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) payment ordinary course of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company business and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, at fair market value as determined by the Board of Directors of the Company);
(10) payments made Borrower in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedgood faith; and
(1213) a transaction leasing of property or series equipment from the Borrower’s employees or any person that is an Affiliate of transactions involving payments not the Borrower in excess the ordinary course of $5.0 million made pursuant to contracts, agreements or other arrangements business and at fair market values as determined by the Borrower in existence on the date hereof and consistent with past practicegood faith.
Appears in 1 contract
Sources: Credit Agreement (Radiation Therapy Services Holdings, Inc.)
Transactions with Affiliates. (a) The Parent and the Company will not, and will not permit any of its their Restricted Subsidiaries to, make any payment to, to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $35.0 million, unless:
(1) such the Affiliate Transaction is on terms that are not materially less favorable favorable, taken as a whole, to Parent, the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction by Parent, the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 75.0 million, a resolution the terms of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has transaction have been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Directors of Parent or such Restricted Subsidiary. Any Affiliate Transaction or series shall be deemed to have satisfied the requirements set forth in clause (2) of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of this Section 4.11(a) if such Affiliate Transaction from is approved by a financial point majority of view issued by an accountingthe Disinterested Directors of Parent or such Restricted Subsidiary, appraisal or investment banking firm of national standingif any.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):) hereof:
(1) any reasonable or customary employment agreement, consulting agreement, severance agreement, employee benefit plan, compensation arrangement, officer and or director indemnification agreement, consulting agreement or any similar arrangement entered into by by, or policy of, Parent, the Company or any of its their Restricted Subsidiaries in the ordinary course of businessand payments pursuant thereto;
(2) (i) transactions (including a merger) between or among Parent, the Company and/or their Restricted Subsidiaries (or entity that becomes a Restricted Subsidiary as a result of such transaction) or between or among Restricted Subsidiaries, (ii) any customary transaction with a Securitization Entity effected as part of a Qualified Securitization Transaction, including in respect of Standard Securitization Undertakings, any disposition of Securitization Assets or related assets in connection with any Qualified Securitization Transaction and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation and (iii) for the avoidance of doubt, any customary transaction between or among Parent, the Company and/or its Restricted SubsidiariesSubsidiaries effected as part of a Qualified Receivables Facility, including in respect of Standard Receivables Undertakings, and any repurchase of Receivables Assets pursuant to a Receivables Repurchase Obligation;
(3) transactions with a Person (other than an Unrestricted Subsidiary of Parent or the Company) that is an Affiliate of Parent or the Company solely because Parent or the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in in, or controls, such Person;
(4) payment of reasonable compensation, fees and reimbursements of expenses to (pursuant to indemnity arrangements (including under customary insurance policies) or otherwise), and employee benefit and pension expenses provided on behalf of, officers, directors’ fees, employees or consultants of Parent, the Company or any of their Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company to Affiliates of the Company and the granting or performance of registration rightsCompany;
(6) (i) Restricted Payments that do not violate the provisions of Section 4.07 hereof and (ii) Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder sales of debt or capital stock Equity Interests of the Company or any direct or indirect parent of the Company’s Company to Affiliates of Parent, the Company or their Restricted Subsidiaries not otherwise prohibited by this Indenture and the granting of registration and other customary rights in connection therewith;
(8) transactions with an Affiliate where such Person the only consideration paid is treated no more favorably than any other holder of debt or capital stock Qualifying Equity Interests of the Company or any direct or indirect parent of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant in which Parent, the Company or any of their Restricted Subsidiaries, as the case may be, deliver to agreements the Trustee a letter from an Independent Financial Advisor stating that such transaction (i) is fair to Parent, the Company or such Restricted Subsidiary from a financial point of view or (ii) meets the requirements of Section 4.11(a)(1) hereof;
(10) payments or loans (or cancellation of loans) to employees or consultants in the ordinary course of business;
(11) any agreement as in effect on as of the date of this Indenture and Issue Date or any amendment, modification, or replacement to such agreement amendment thereto (so long as the amendmentany such agreement together with all amendments thereto, modification or replacement taken as a whole, is not materially more disadvantageous to the Holders of the NotesNotes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(12) payments to, taken as or the receipt of payments from, and entry into and the consummation of transactions with, joint ventures entered into in the ordinary course of business;
(13) any contributions to the common equity capital of Parent or the Company or their Restricted Subsidiaries;
(14) pledges of Equity Interests of Unrestricted Subsidiaries;
(15) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of Parent, the Company or of a wholeRestricted Subsidiary of the Company or Parent, as determined by appropriate, in good faith;
(16) transactions with customers, clients, lessors, landlords, suppliers, contractors, or purchasers or sellers of goods or services that are Affiliates, 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 Parent, the Company and their Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company), or are on no less favorable terms than those that could reasonably have been obtained at such time from an unaffiliated party;
(1017) payments made in fulfillment transactions between Parent, the Company and any of their Restricted Subsidiaries and any Person a director of which is also a director of the Company’s obligations arising in connection with Company or Parent; provided, however, that such director abstains from voting as a director of the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services renderedCompany or Parent, as the case may be, on any matter involving such other Person; and
(1218) a transaction any purchases by the Company’s Affiliates of Indebtedness or series Disqualified Stock of transactions involving payments the Company or any of its Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the date hereof and consistent with past practice.same terms as such purchases by such Persons who are not the Company’s Affiliates. 68
Appears in 1 contract
Sources: Indenture (Adient PLC)
Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, exchange, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “Affiliate Transaction”)) involving aggregate consideration in excess of $15.0 million, unless:
(1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by at the Company or such Restricted Subsidiary time in an arm’s-length transaction with a person who was not an unrelated PersonAffiliate; and
(2b) the Company delivers to the Trustee:
(A) with respect to any if such Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration involves an amount in excess of $15.0 30.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the Company disinterested with respect to such Affiliate Transaction has determined in good faith that the criteria set forth in clause (a) of this Section 5.11 are satisfied and has approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of Officer’s Certificate. The foregoing provisions will not apply to the disinterested members of the Board of Directors; andfollowing:
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a 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 4.11(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar compensation plan or arrangement and other benefits (including retirement, health, stock option and other benefit plans) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of businessbusiness of the Company or such Restricted Subsidiary;
(2ii) transactions (including a merger) exclusively between or among the Company and/or its Restricted Subsidiaries (other than a Receivables Entity); provided that such transactions are not otherwise prohibited by this Indenture;
(iii) any agreement existing on the Issue Date, as in effect on the Issue Date, or as modified, amended or amended and restated by any modification, amendment or amendment and restatement (x) that, taken as a whole, is not more disadvantageous to the holders of the Notes in any material respect than such agreement as it was in effect on the Issue Date or (y) made in compliance with the applicable provisions of clauses (a) and (b) of this Section 5.11;
(iv) reasonable compensation of, and indemnity arrangements in favor of, directors of the Company and its Subsidiaries;
(3v) transactions with a Person (other than an Unrestricted Subsidiary the issuance or sale 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 such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company and any contribution to Affiliates the common equity of the Company and the granting or performance of registration rightsCompany;
(6vi) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely transactions in its capacity as a holder of debt or capital stock of which the Company or any of its Restricted Subsidiaries, as the Company’s Restricted Subsidiaries where case may be, deliver to the Trustee a letter from an Independent Financial Advisor stating that such Person transaction (i) is treated no more favorably than any other holder of debt or capital stock of fair to the Company or any such Restricted Subsidiary from a financial point of view or (ii) meets the Company’s Restricted Subsidiariesrequirements of Section 5.11(a);
(8) vii) transactions with Unrestricted Subsidiaries, customers, clients, lessors, landlords, suppliers, contractors, or purchasers or sellers of goods or services that are Affiliates, in each case, in the existence ordinary course of or the performance by the Company or any of the Company’s Restricted Subsidiaries business and otherwise in compliance with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous that are fair to the Holders Company and its Restricted Subsidiaries, in the reasonable determination of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10viii) payments made sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in fulfillment an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of the Company’s obligations arising Permitted Investments in connection with the ESSI Merger;
(11) reasonable with, and documented attorney’s fees and expenses paid in consideration for services renderedany other customary transactions effected as a part of, a Qualified Receivables Transaction; and
(12ix) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof Restricted Payments that are permitted by Section 5.07 and consistent with past practicePermitted Investments.
Appears in 1 contract
Transactions with Affiliates. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company Issuer (each each, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $5,000,000, unless:
(1) such the Affiliate Transaction is on terms terms, taken as a whole, that are not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person; and
(2) the Company Issuer delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million20,000,000, a resolution an Officer’s Certificate of the Board of Directors set forth in an Officers’ Certificate Issuer certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors4.11; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million50,000,000, a resolution of the Board of Directors of the Issuer set forth in an opinion as to the fairness to the Company or such Subsidiary of Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Issuer; provided that, in the event there are no disinterested members of the Board of Directors of the Issuer, the Board of Directors of the Issuer shall also have received a written opinion from a financial point of view issued by an accounting, appraisal or investment banking firm of national standingstanding to the effect that such Affiliate Transaction or series of related Affiliate Transactions is fair, from a financial standpoint, to the Issuer and its Restricted Subsidiaries or is not materially less favorable to the Issuer and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a non-Affiliate.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions (including a merger) 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 Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments4.07;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Intl Fcstone Inc.)
Transactions with Affiliates. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, conduct any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, business or enter into any transaction (or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, series of related transactions) with or for the benefit of, of any Affiliate of the Company their respective Affiliates (each an “"Affiliate Transaction”"), unless:
(1) such Affiliate Transaction Transaction, taken as a whole, is on terms that which are not materially no less favorable to the Company or the relevant such Restricted Subsidiary, taken as a wholethe case may be, than those that would have been obtained be available in a comparable transaction by the Company or such Restricted Subsidiary on an arm's-length basis with an unrelated Personunaffiliated third party; and
(2) the Company delivers to the Trustee:
(A) with respect to any if such Affiliate Transaction or series of related Affiliate Transactions involving involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 2.5 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) is in writing and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Directors of the Company shall have approved such Affiliate Transaction or series of related and determined that such Affiliate Transactions involving aggregate consideration Transaction complies with the foregoing provisions, or, in excess of $25.0 millionthe event that there are no disinterested directors, the Trustee has received a written opinion from an opinion as to Independent Financial Advisor stating that the fairness to the Company or such Subsidiary terms of such Affiliate Transaction are fair, from a financial point of view issued by an accountingview, 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 Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be. In addition, any Affiliate Transaction involving aggregate payments or other consideration having a Fair Market Value in excess of $10.0 million will also require a written opinion from an Independent Financial Advisor (filed with the Trustee) stating that the terms of such Affiliate Transaction are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this Section 4.11(a):4.03 shall not apply to:
(1) transactions with or among the Company and any employment agreementRestricted Subsidiary or between or among Restricted Subsidiaries;
(2) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit planarrangements and incentive arrangements with any officer, officer and director indemnification agreement, consulting agreement or any similar arrangement entered into by employee of the Company or any Restricted Subsidiary entered into in the ordinary course of its business (including customary benefits thereunder) and payments under any indemnification arrangements permitted by applicable law;
(3) the Spin-Off Documents as in effect on the Distribution Date;
(4) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiaries Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business;
(25) transactions (including a merger) between or among the Company and/or its Restricted Subsidiariespledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof;
(36) transactions any transaction consummated in compliance with a Person Section 4.06;
(other than an Unrestricted Subsidiary 7) issuances and sales to Affiliates of Qualified Equity Interests of the Company) ; and
(8) transactions with any Person that is an Affiliate of the Company or any Restricted Subsidiary solely because the Company ownsor any Restricted Subsidiary owns Equity Interests in, directly or through a Restricted Subsidiaryotherwise control, an Equity Interest in such Person;
(4) payment of reasonable directors’ fees;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practice.
Appears in 1 contract
Sources: Indenture (Amo Holdings LLC)
Transactions with Affiliates. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company (each foregoing, an “"Affiliate Transaction”"), unless:
unless (1a) such Affiliate Transaction is on terms that are not materially no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
Person or, if there is no such comparable transaction, on terms that are fair and reasonable to the Company or such Restricted Subsidiary, and (2b) the Company delivers to the Trustee:
Trustee (Ai) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million1,000,000, a resolution of the Board of Directors set forth in an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 4.11(aclause (a) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
Directors and (Bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million5,000,000, an opinion as to the fairness to the Company or such the relevant Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm that is, in the judgment of national standing.
(b) The the Board of Directors, qualified to render such opinion and is independent with respect to the Company; provided, however, that the following items will not shall be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
Transactions: (1A) any employment agreement, employee benefit plan, officer and director indemnification agreement, consulting agreement or any similar other employee compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
business of the Company or such Restricted Subsidiary; (2B) transactions (including a merger) between or among the Company and/or and its Restricted Subsidiaries;
; (3C) transactions with a Person Permitted Investments and Restricted Payments that are permitted by the provisions of Section 4.07 of this Indenture; (D) any Investment or other than an Unrestricted Subsidiary of the CompanyRestricted Payment, in each case, permitted to be made pursuant to Section 4.07; (E) that is an Affiliate loans or advances to officers, directors and employees of the Company solely because or any of its Restricted Subsidiaries made in the ordinary course of business and consistent with past practices of the Company ownsand its Restricted Subsidiaries in an aggregate amount not to exceed $500,000 outstanding at any one time; (F) indemnities of officers, directly directors and employees of the Company or through a any of its Restricted Subsidiaries permitted by bylaw or statutory provisions; (G) maintenance in the ordinary course of business of customary benefit programs or arrangements for officers, directors and employees of the Company or any Restricted Subsidiary, an Equity Interest in such Person;
including without limitation vacation plans, health and life insurance plans, deferred compensation plans, retirement or savings plans and similar plans; (4H) payment registration rights or similar agreements with officers, directors or Affiliates of reasonable directors’ fees;
the Company or any Restricted Subsidiary; (5I) any issuance of Equity Interests (other than Disqualified Stock) by the Company; and (J) the payment of the Company reasonable and customary regular fees to Affiliates of the Company and the granting or performance of registration rights;
(6) Restricted Payments that do not violate the provisions of Section 4.07 hereof and Permitted Investments;
(7) if such Affiliate Transaction is with any Person solely in its capacity as a holder of debt or capital stock directors of the Company or any of the Company’s its Restricted Subsidiaries where such Person is treated no more favorably than any other holder of debt or capital stock who are not employees of the Company or any of the Company’s Restricted Subsidiaries;
(8) the existence of or the performance by the Company or any of the Company’s Restricted Subsidiaries with any of its obligations under the terms of any stockholders or similar agreement entered into in connection with the ESSI Merger;
(9) transactions effected pursuant to agreements in effect on the date of this Indenture and any amendment, modification, or replacement to such agreement (so long as the amendment, modification or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole, as determined by the Board of Directors of the Company);
(10) payments made in fulfillment of the Company’s obligations arising in connection with the ESSI Merger;
(11) reasonable and documented attorney’s fees and expenses paid in consideration for services rendered; and
(12) a transaction or series of transactions involving payments not in excess of $5.0 million made pursuant to contracts, agreements or other arrangements in existence on the date hereof and consistent with past practiceAffiliate.
Appears in 1 contract
Sources: Indenture (Ascent Energy Inc)