Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction"), unless: (i) such Affiliate Transaction 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 by the Company or such Restricted Subsidiary with an unrelated Person; and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing. (b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions): (1) transactions 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 contemplated thereby; (4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses; (5) any agreement in 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 foregoing; and (6) 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 with an unrelated Person.
Appears in 2 contracts
Sources: Indenture (Sailors Inc), Indenture (Harborside Healthcare Corp)
Transactions with Affiliates. (a) The Company 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 involving aggregate consideration in excess of $50,000 (each of the foregoingeach, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, that taken as a whole, whole are no not materially 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 a person who is not an unrelated PersonAffiliate; and
and (ii) the Company delivers to the Trustee Trustee: (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution certifying of Directors set forth in an Officers' Certificate to the effect that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members 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 $10.0 15.0 million, 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, appraisal or accounting banking firm of national standing.
(b) standing or an appraisal from an MAI appraiser, if appropriate. The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate Transactions):
Transactions and therefore shall not be subject to the provisions of the prior paragraph: (1) any employment, consulting or other compensation agreement 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 between or among the Company and/or its Restricted Subsidiaries;
; (23) Permitted Investments and sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company; (4) Restricted Payments that are permitted by the provisions of this Indenture described under Section 4.04;
4.07 hereof; (35) employment agreementsthe payment of reasonable and customary fees paid to, employee benefit plans and related arrangements entered into indemnity provided on behalf of, officers, directors, employees or Consultants of the Company or any Subsidiary; (6) loans in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether officers, directors, employees or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, Consultants which payments are approved by a majority of the Independent Members of the Board of Directors of the Company in good faith and or, if there are no Independent Members of the Board of Directors, by a unanimous vote of the Board of Directors; (B) of annual management, consulting and advisory fees and related expenses;
(57) any agreement as in effect on as of the Closing Issue 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 or modification thereto (so long as any such amendment or modification is not disadvantageous to the Holders holders of the Notes in any material respect) or any payment or other transaction contemplated by any of the foregoingthereby; and
and (6) 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 8) agreements between the Company or the relevant any Restricted Subsidiary than those that would have been obtained in and officers and directors of the Company with respect to home purchases pursuant to a comparable transaction with an unrelated Personhome purchase program available to officers and directors of the Company.
Appears in 2 contracts
Sources: Indenture (Wci Communities Inc), Indenture (Communities Home Builders Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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"”), in each case, involving aggregate consideration in excess of $30.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 60.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the disinterested directors of the Board Resolution of Directors, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction);
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment [reserved];
(iv) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, any Restricted Subsidiary, or any Parent Entity of the Company (limited, in the case of any Parent Entity, to the portion of such fees and expenses that are allocable to the Company and its Subsidiaries);
(v) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vi) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are otherwise permitted under this Indenture;
(vii) the existence of and the performance of any and all obligations (including payment obligations) pursuant to, and any transaction contemplated by, any agreement as in effect as of the Issue Date or any modification, amendment, supplement, replacement or any renewal thereof (so long as, in the case of any modification, amendment, supplement, replacement or renewal, any such agreement, together with all amendments thereto, is either (i) not materially more disadvantageous taken as a whole to the Company and its Restricted Subsidiaries than the original agreement as in effect on the Issue Date or (ii) the type of modification, amendment, supplement, replacement or renewal or the manner of determining the terms of such modification, amendment, supplement, replacement or renewal is made pursuant to and consistent with the terms of such agreements, employee benefit plans as in effect on the Issue Date or as subsequently amended or entered into in accordance with this Indenture (including any modifications to rent or the term thereof in connection with a renewal thereof and modifications to rent resulting from the sale or disposition of properties or acquisition of properties subject to any such agreement), in each case as determined in good faith by an Officer of the Company;
(viii) [reserved];
(ix) the execution of the Restructuring Transactions, and the payment of all fees and expenses related arrangements to or required by the Restructuring Transactions;
(x) [reserved];
(xi) (A) transactions with 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, which are fair to the Company and the Restricted Subsidiaries as determined in good faith by an 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 and all payments and other transactions contemplated therebyconsistent with industry norm;
(4xii) any payments to Investcorp and its Affiliates the issuance of Equity Interests (whether or not such Persons are Affiliates other than Disqualified Stock) of the CompanyCompany to any Person to the extent otherwise permitted by this Indenture;
(xiii) [reserved];
(Axiv) for any financial advisorythe entry into and the issuances of securities or other payments, financingawards or grants in cash, underwriting securities or placement services otherwise pursuant to, or in respect of other investment banking activitiesthe funding of, including in connection with acquisitions employment arrangements, stock option and stock ownership plans or divestitures, which payments are similar employee benefit plans approved by the Board of Directors or any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with employees, officers or directors;
(xv) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(c)(xi);
(xvi) any contribution to the capital of any Issuer;
(xvii) transactions permitted by, and complying with, Section 5.01;
(xviii) transactions between the Company or any Restricted Subsidiary and any Person, a director of which is also a director of the Company, its general partner or any Parent Entity of the Company; provided, however, that such director abstains from voting as a director of the Company (or its general partner) or such Parent Entity, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxi) any employment agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business; and
(xxii) transactions undertaken in good faith (as certified by the chief financial or accounting Officer of the Company in good faith and (Ban Officer’s Certificate delivered to the Trustee) for the purpose of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on improving the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and consolidated tax efficiency of the Company and its Subsidiaries and not for the Brevard lease agreementpurpose of circumventing any provision set forth in this Indenture.
(c) Transactions with CEC, CES, CEOC or any of their respective Affiliates shall be made in compliance with either Section 4.07(a) 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 one of the foregoing; and
provisions of Section 4.07(b) above (6) Debt permitted by Section 4.03(b)(x) to regardless of whether CEC, CES or CEOC meets 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 with an unrelated Persondefinition of “Affiliate” under this Indenture).
Appears in 2 contracts
Sources: Indenture (Vici Properties Inc.), Indenture (Vici Properties Inc.)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 75.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements(x) the entering into of any agreement (and any amendment or modification of any such agreement so long as, employee benefit plans and related arrangements entered into in the ordinary course good faith judgment of business the Board of Directors of the Issuer, any such amendment is not disadvantageous to the holders when taken as a whole, as compared to such agreement as in effect on the Issue Date) to pay, and the payment of, management, consulting, monitoring and advisory fees to the Sponsors in an aggregate amount in any fiscal year not to exceed the greater of (A) $30.0 million and (B) 1.0% of EBITDA of the Issuer and its Restricted Subsidiaries for the immediately preceding fiscal year, plus out-of-pocket expense reimbursement; provided, however, that any payment not made in any fiscal year may be carried forward and paid in the following two fiscal years and (y) the payment of the present value of all payments and other transactions contemplated therebyamounts payable pursuant to any agreement described in clause (iii)(x) of this Section 4.07(b) in connection with the termination of such agreement;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary, any direct or indirect parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreements with the Sponsors described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the Issuer;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, Acquisition Documents, 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 Issuer 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 Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Issue Date;
(x) the execution of the Acquisition Transactions, and the payment of all fees and expenses related to the Acquisition Transactions, including fees to the Sponsors, which are described in the Offering Memorandum or contemplated by the Acquisition Documents;
(xi) any transactions made pursuant to any Operations Management Agreement and any transactions in connection with the use of the revolving credit facility under the Credit Agreement for the account or benefit of the Subsidiaries of ▇▇▇▇▇▇’▇ Entertainment other than the Issuer and its Subsidiaries (including the distribution of the proceeds of any such revolving credit Indebtedness and with respect to the issuance of, or payments in respect of drawings under, letters of credit);
(xii) (A) transactions with 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, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(xiii) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xiv) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xv) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xvi) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xvii) any contribution to the capital of the Issuer;
(xviii) transactions permitted by, and complying with, Section 5.01;
(xix) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xx) pledges of Equity Interests of Unrestricted Subsidiaries;
(xxi) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxii) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business; and
(xxiii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Issuer in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture.
Appears in 2 contracts
Sources: Indenture (Harrahs Entertainment Inc), Indenture (Harrahs Entertainment Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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:
(i1) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a2) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 250.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Company approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i1) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and this Section 4.11(a); and:
(b3) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 500.0 million, an the Company must obtain and deliver the Trustee a written opinion as of a nationally recognized investment banking, accounting or appraisal firm stating that the transaction is fair to the fairness to Company or such Subsidiary, as the Holders of such Affiliate Transaction case may be, from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingview.
(b) The provisions of Section 4.07(a4.11(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):apply to:
(1) Restricted Payments that are permitted by Section 4.07;
(2) 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 retirement, 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;
(25) Permitted Investments the issuance of Equity Interests (other than Disqualified Equity Interests) of the Company otherwise permitted hereunder and Restricted Payments that are permitted by Section 4.04capital contributions to the Company;
(36) employment agreementsany agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect; and
(7) transactions with customers, employee benefit plans and related arrangements entered into clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and all payments consistent with past practice and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, that are no less favorable to the Company or such Subsidiary, as the relevant Restricted Subsidiary case may be, as determined in good faith by the Company, than those that would have been could be obtained in a comparable arm’s length transaction with a Person that is not an unrelated PersonAffiliate of the Company.
Appears in 2 contracts
Sources: Indenture (Residential Capital, LLC), Indenture (Residential Capital, LLC)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not permit any of its the 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")”) involving aggregate consideration in excess of $80 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 112.5 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Company, approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Company and any direct parent of the Company; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and related arrangements entered into in indemnity provided on behalf of, officers, directors, employees or consultants of the ordinary course Company, any Restricted Subsidiary, or any direct or indirect parent of business and all payments and other transactions contemplated therebythe Company;
(4iv) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(v) payments or loans (or cancellation of loans) to Investcorp and its Affiliates (whether officers, directors, employees or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, consultants which payments are approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the Company;
(vii) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of any stockholders 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (vii) 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 no less not otherwise more disadvantageous to the holders of the Notes in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date;
(viii) (A) transactions with 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, which are fair to the Company and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(ix) any transaction effected as part of a Qualified Securitization Financing;
(x) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(xi) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, management equity plans, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company or the relevant Board of Directors of any direct or indirect parent of the Company, or the Board of Directors of a Restricted Subsidiary, as applicable, in good faith;
(xii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii) and the performance under any such agreement or arrangement;
(xiii) any contribution to the capital of the Company;
(xiv) transactions permitted by, and complying with, Section 5.01;
(xv) transactions between the Company or any Restricted Subsidiary than those and any Person, a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that would have been obtained such director abstains from voting as a director of the Company or such direct or indirect parent of the Company, as the case may be, on any matter involving such other Person;
(xvi) pledges of Equity Interests of Unrestricted Subsidiaries;
(xvii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xviii) any employment agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xix) transactions undertaken in good faith (as certified by a comparable transaction with responsible financial or accounting officer of the Company in an unrelated PersonOfficers’ Certificate) for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
(xx) non-exclusive licenses of intellectual property to or among the Company, its Restricted Subsidiaries and their Affiliates.
Appears in 2 contracts
Sources: Indenture (XPO Logistics, Inc.), Indenture (XPO Logistics, Inc.)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 75.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements(x) the entering into of any agreement (and any amendment or modification of any such agreement so long as, employee benefit plans and related arrangements entered into in the ordinary course good faith judgment of business the Board of Directors of the Issuer, any such amendment is not disadvantageous to the holders when taken as a whole, as compared to such agreement as in effect on the Existing 8.5% Issue Date) to pay, and the payment of, management, consulting, monitoring and advisory fees to the Sponsors in an aggregate amount in any fiscal year not to exceed the greater of (A) $30.0 million and (B) 1.0% of EBITDA of the Issuer and its Restricted Subsidiaries for the immediately preceding fiscal year, plus out-of-pocket expense reimbursement; provided, however, that any payment not made in any fiscal year may be carried forward and paid in the following two fiscal years and (y) the payment of the present value of all payments and other transactions contemplated therebyamounts payable pursuant to any agreement described in clause (iii)(x) of this Section 4.07(b) in connection with the termination of such agreement;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary, any direct or indirect parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreements with the Sponsors described in the February Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Existing 8.5% Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Existing 8.5% Issue Date) or any transaction contemplated thereby as determined in good faith by the Issuer;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, Acquisition Documents, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Existing 8.5% Issue Date, and any transaction, agreement or arrangement described in the February Offering Memorandum and, in each case, 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 Issuer 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 Existing 8.5% Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Existing 8.5% Issue Date;
(x) the execution of the Acquisition Transactions, and the payment of all fees and expenses related to the Acquisition Transactions, including fees to the Sponsors, which are described in the February Offering Memorandum or contemplated by the Acquisition Documents;
(xi) any transactions made pursuant to any Operations Management Agreement and any transactions in connection with the use of the revolving credit facility under the Credit Agreement for the account or benefit of the Subsidiaries of Caesars Entertainment other than the Issuer and its Subsidiaries (including the distribution of the proceeds of any such revolving credit Indebtedness and with respect to the issuance of, or payments in respect of drawings under, letters of credit);
(xii) (A) transactions with 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, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(xiii) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xiv) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xv) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xvi) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xvii) any contribution to the capital of the Issuer;
(xviii) transactions permitted by, and complying with, Section 5.01;
(xix) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xx) pledges of Equity Interests of Unrestricted Subsidiaries;
(xxi) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxii) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business; and
(xxiii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Issuer in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture.
Appears in 2 contracts
Sources: Indenture (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp)
Transactions with Affiliates. (a) The Company Targa Resources Partners 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 Targa Resources Partners (each individually or as a series of the foregoingrelated transactions, an "“Affiliate Transaction"” involving aggregate payments or consideration in excess of $10.0 million), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Targa Resources Partners or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Targa Resources Partners or such Restricted Subsidiary with an unrelated Person; and
(ii) Person or, if in the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members good faith judgment of the Board of Directors and of the General Partner, no comparable transactions are available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to Targa Resources Partners or the relevant Restricted Subsidiary from a financial point of view; and
(b2) Targa Resources Partners delivers to the Trustee, with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 50.0 million, an opinion as to a resolution adopted by a majority of the fairness to disinterested members of the Holders Board of Directors of the General Partner approving such Affiliate Transaction from a financial point and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (1) of view issued by an investment banking, appraisal or accounting firm of national standingthis Section 4.11(a).
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, shall not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, equity award, equity option or equity appreciation agreement or plan or any similar arrangement entered into by Targa Resources Partners or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company Targa Resources Partners and/or its Restricted Subsidiaries;
(23) Permitted Investments and transactions with a Person (other than an Unrestricted Subsidiary of Targa Resources Partners) that is an Affiliate of Targa Resources Partners solely because Targa Resources Partners owns, directly or through a Restricted Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(34) employment any issuance of Equity Interests (other than Disqualified Equity) of Targa Resources Partners to Affiliates of Targa Resources Partners;
(5) Restricted Payments or Permitted Investments that do not violate Section 4.07 hereof;
(6) transactions entered into as part of a Permitted Receivables Financing;
(7) customary compensation, indemnification and other benefits made available to officers, directors or employees of Targa Resources Partners or any Affiliate of Targa Resources Partners, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(8) in the case of contracts for purchase, gathering, processing, fractionating, sale, transportation and marketing of crude oil, natural gas, condensate and natural gas liquids, hedging agreements, employee benefit plans and related arrangements production handling, operating, construction, terminaling, storage, lease, 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 Targa Resources Partners or any Restricted Subsidiary and all payments and other transactions contemplated therebythird parties, or if neither Targa Resources Partners nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s-length basis;
(49) 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; and
(10) the existence of, or the performance by Targa Resources Partners or any Restricted Subsidiary of its obligations under the terms of, (i) any payments agreements that (x) are described in the annual report on Form 10-K of Targa Resources Partners for the year ended December 31, 2019 under the heading “Certain Relationships and Related Party Transactions, and Director Independence” to Investcorp and its Affiliates which it is a party on the terms described in such Annual Report on Form 10-K, (whether y) are otherwise described in Schedule 4.11 to this Indenture, or not such Persons are Affiliates (z) form part of an Affiliate Transaction that meets the Companyrequirements of subclauses (1) (A) 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 approved by the Board of Directors of the Company in good faith and (B2) of annual managementSection 4.11(a) hereof, consulting and advisory fees and related expenses;
(5ii) any agreement in effect on amendments to such agreements and (iii) any similar agreements which it may enter into thereafter; provided, however, that the Closing Date (including existence of, or 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) performance by Targa Resources Partners or any Restricted Subsidiary of its obligations under, any future amendment thereto to such agreements or under any such similar agreements shall only be permitted by this clause (so long as 10) to the extent that the terms of any such amendment is or new agreement, taken as a whole, are either on terms comparable to the agreements referred to in the preceding clause (i) or are not disadvantageous less favorable to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) 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 with an unrelated Person.
Appears in 2 contracts
Sources: Indenture (Targa Resources Partners LP), Indenture (Targa Resources Partners LP)
Transactions with Affiliates. (a) The Company 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 Guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an "“Affiliate Transaction"”), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, 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; and
Person and (ii) the Company delivers to the Trustee Holders (aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million1,000,000, a resolution of the Board Resolution of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and (bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million5,000,000, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and; provided, however, that the following shall not be deemed to be Affiliate Transactions):
Transactions (1i) the payment of Earn-out Obligations pursuant to agreements entered into at such time as the recipient of such payments was not an Affiliate of the Company or such Subsidiary, (ii) any employment agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Subsidiary, (iii) transactions between or among the Company and/or its Subsidiaries, (iv) Restricted Subsidiaries;
(2) Payments and Permitted Investments and Restricted Payments that are permitted by the provisions of Section 4.04;
8.2 hereof, (3v) employment agreementsthe payment of the fees, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments expenses and other transactions contemplated thereby;
(4) any payments to Investcorp amounts payable by the Company and its Affiliates Subsidiaries in connection with the Transactions that shall not exceed $13,000,000 and shall be reasonably consistent with the schedule of fees provided by the Company to the Purchasers prior to the Closing Date, (whether vi) the payment of reasonable and customary regular fees to, and indemnity provided on behalf of, officers, directors and employees of the Company or not such Persons are Affiliates any Subsidiary of the Company, (vii) (A) for any financial advisory, financing, underwriting or placement services or in respect the payment of fees and other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved amounts payable by the Board of Directors of Company and its Subsidiaries under the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Management Services Agreement (as amended on April 15, 1998) between or any agreement extending or replacing the Berkshire Companies Limited Partnership Management Services Agreement which contains the same terms with respect to fees and other terms no less favorable to the Company and its Subsidiaries) and (viii) the Brevard lease agreement) performance of any of the Financing Documents as in effect as of the date of this Agreement or any transaction contemplated thereby (including pursuant to any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of the Notes in any material respect) ). Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of its Subsidiaries shall pay any fees to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P. or any of its Affiliates (collectively “LGP”): (1) on any date other than any Interest Payment Date on which the entire interest due on the Notes on such Interest Payment Date is paid in cash; (2) if a Default or an Event of Default is then continuing or may result from such payment; or (3) in the amount on any Interest Payment Date on which payment or other transaction contemplated of such fees is permitted pursuant to clauses (1) and (2) above in excess of $500,000 plus any amounts available for such payments, but not paid, on prior Interest Payment Dates solely by any reason of clauses (1) and/or (2) above; provided, that in no event shall the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) aggregate amount of all such fees paid to LGP from the extent such Debt is on terms thatClosing Date through and including November 15, 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 with an unrelated Person2008 exceed $5,000,000.
Appears in 2 contracts
Sources: Exchange Agreement (Check Mart of New Mexico Inc), Exchange Agreement (Check Mart of New Mexico Inc)
Transactions with Affiliates. (a) The Company 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 (each of the foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate annual payments or consideration in excess of $2,000,000, unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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, with such determination to be made at the time such Affiliate Transaction is entered into or agreed to; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million25,000,000, the Company delivers to the Administrative Agent either (I) a resolution of the Board Resolution of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 6.6 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and or (bII) with respect to any such Affiliate Transaction involving aggregate consideration in excess or series of $10.0 millionrelated Affiliate Transactions as to which there are no disinterested members of the Board of Directors, an opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingindependent accounting, appraisal or accounting 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 provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1i) director, officer, employee and consultant compensation, benefit, reimbursement and indemnification agreements, 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;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(2iii) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
transactions with a Person (3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because either (Ax) for the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person or (y) a director of such Person is also a director of the Company; provided such director abstains from voting as a director of the Company on any financial advisory, financing, underwriting matter involving such other person;
(iv) (x) any issuance of Qualified Equity Interests of the Company (other than Designated Preferred Stock) to an Affiliate and the granting or placement services or performance of registration rights in respect of any Qualified Equity Interests of the Company (other investment banking activities, including in connection with acquisitions or divestituresthan Designated Preferred Stock), which payments are rights have been approved by the Board of Directors of the Company or (y) any contribution to the Qualified Equity Interest capital of the Company by an Affiliate (other than in good faith and (B) respect of annual management, consulting and advisory fees and related expensesDesignated Preferred Stock);
(5v) Restricted Payments that do not violate Section 6.3 and Investments consisting of Permitted Investments;
(vi) the performance of obligations of the Company or any Restricted Subsidiary under the terms of any agreement that is in effect as of or on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended and set forth on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreementSchedule 6.6(b)(vi) or any amendment amendment, modification, supplement, extension or renewal, from time to time, thereto or any transaction contemplated thereby (including pursuant to any amendment, modification, supplement, extension or renewal, from time to time, thereto) in any replacement agreement thereto, so long as any such amendment amendment, modification, supplement, extension or renewal, or replacement agreement, is not materially more disadvantageous to Lenders taken as a whole than the Holders original agreement as in any material respecteffect on Closing Date;
(vii) transactions effected as part of a Qualified Securitization Transaction;
(viii) transactions in which the Company delivers to the Administrative Agent an opinion as to the fairness to the Company or any payment such Restricted Subsidiary of such Affiliate Transaction from a financial point of view or other transaction contemplated that such Affiliate Transaction meets the requirements of clause (a)(i) above, in each case, issued by any an independent accounting, appraisal or investment banking firm of international standing qualified to perform the foregoingtask for which such firm has been engaged (as determined in good faith by the Company);
(ix) payments, loans or advances to employees or consultants or guarantees in respect thereof (or cancellation of loans, advances or guarantees) for bona fide business purposes; and
(6x) 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 investments in securities of the Company or any of the relevant Restricted Subsidiary Subsidiaries (and payment of reasonable out-of-pocket expenses incurred in connection therewith) so long as (i) the investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than those that would have been obtained in a comparable transaction with an unrelated Person15.0% of the proposed issue amount of such class of securities.
Appears in 2 contracts
Sources: Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $15.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 35.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer or any Parent of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) (A) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries and (B) any merger or amalgamation of the Issuer and any direct parent company of the Issuer; 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 Issuer and such merger or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and (a) Restricted Payments that are permitted by Section 4.044.04 and (b) Investments under the definition of “Permitted Investments”;
(3iii) employment agreementsthe entering into of any agreement to pay, employee benefit plans and related arrangements entered into the payment of, management, consulting, monitoring and advisory fees and expenses to the Sponsors in an aggregate amount in any fiscal year not to exceed the ordinary course greater of business (x) $12.5 million and all payments (y) 1.25% of Adjusted EBITDA of the Issuer and other transactions contemplated therebyits Restricted Subsidiaries for the immediately preceding fiscal year;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees to, and indemnity provided on behalf of officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary of the Issuer or any Parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) approved by a majority of the Board of Directors of the Company Issuer in good faith or (y) made pursuant to any agreement described under Item 13 “Certain Relationships and (B) of annual managementRelated Transactions and Director Independence” in Intelsat, consulting and advisory fees and related expensesLtd.’s Annual Report on Form 10-K for the year ended December 31, 2007;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to employees or consultants that are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, the Acquisition Documents 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 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 the Holders of the Notes in any material respect than those that would the original agreement as in effect on the Issue Date;
(x) transactions to effect the Transactions and the payment of all fees and expenses related to the Transactions;
(xi) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable judgment of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (B) transactions with Joint Ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a comparable Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Permitted Holder or to any director, officer, employee or consultant of the Issuer or any Parent of the Issuer;
(xiv) 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 the Issuer or any Parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by clause (xii) of Section 4.04(b);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, the provisions of Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any Parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such Parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business; and
(xxi) any transaction pursuant to or in connection with an unrelated Personthe Specified Intercompany Agreements.
Appears in 2 contracts
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany involving aggregate consideration in any single transaction or series of related transactions (each, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, 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 PersonPerson or, if in the good faith judgment of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(ii2) the Company delivers to the Trustee (a) Trustee, with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million500,000.00, a resolution of the Board Resolution of Directors of the Company set forth in an Officer’s Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (i) above this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by the Board of Directors, including a majority of the disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 millionthe Company, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingif any.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):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, officer or director indemnification, compensation or severance agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(6) Permitted Investments and or Restricted Payments that are permitted by do not violate the provisions of Section 4.044.07 hereof;
(37) employment agreementstransactions effected in accordance with the terms of the agreements of the Company or any Restricted Subsidiary that are in effect on the Issue Date, employee benefit plans and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less advantageous to the Company, taken as a whole, than the agreement so amended or replaced as determined in good faith by the Company;
(8) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business;
(9) transactions between the Company or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Company or any direct or indirect parent company of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company or any direct or indirect parent company of the Company, as the case may be, on any transaction with such other Person;
(10) in the case of contracts for exploring for, producing, marketing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related arrangements or ancillary thereto, or other operational contracts, any such contracts entered into in the ordinary course of business or in accordance with past practice or industry custom and all payments and other transactions contemplated thereby;
(4) any payments otherwise in compliance with the terms of this Indenture which are fair to Investcorp the Company and its Affiliates (whether or not such Persons are Affiliates Restricted Subsidiaries, in the reasonable determination of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual managementor the senior management thereof, consulting and advisory fees and related expensesor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(511) any agreement in effect payments to Affiliates on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and or with respect to debt securities or other Indebtedness of the Company and the Brevard lease agreement) or any amendment thereto (so long Subsidiary on a similar basis as any payments are made or offered to holders of such amendment is not disadvantageous to the Holders in any material respect) debt securities or any payment or Indebtedness held by Persons other transaction contemplated by any of the foregoingthan Affiliates; and
(612) Debt permitted by Section 4.03(b)(x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the extent Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such Debt transaction is on terms that, taken as a whole, are no less favorable fair to the Company or the relevant such Restricted Subsidiary than those from a financial point of view or that would have been obtained in a comparable such transaction with an unrelated Personmeets the requirements of Section 4.11(a)(1).
Appears in 2 contracts
Sources: Indenture (HighPeak Energy, Inc.), Indenture (HighPeak Energy, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 of the foregoing, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, a resolution of the Board Resolution of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i1) above of this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and of the Company (band, if any, a majority of the disinterested members of the Board of Directors of the Company with respect to such transaction); and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million25.0 million (other than Affiliate Transactions in connection with joint bidding, joint marketing or other similar arrangements for the provision of services in the ordinary course of services in the Permitted Business), an opinion as to the fairness to the Holders Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any consulting or employment agreement or arrangement, benefit arrangement or plan, incentive compensation plan, stock option or stock ownership plan, employee benefit plan, severance arrangements, expense reimbursement arrangements, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries for the benefit of directors, officers, employees and consultants of the Company or a direct or indirect parent of the Company and payments and transactions pursuant thereto, including, without limitation, those payments described under the captions “Management—Employment Agreements” and “Management—Compensation of Directors” in the Offering Circular or otherwise in the ordinary course of business;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and 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 Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(34) employment agreementspayment of reasonable directors fees to directors of the Company or any direct or indirect parent or any Restricted Subsidiary of the Company and the provision of customary indemnification and payment of other reasonable fees, employee benefit plans compensation, benefits and related arrangements indemnifications paid or entered into with directors, officers, employees and consultants of the Company or any direct or indirect parent or any Restricted Subsidiary of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or any contribution to the capital of the Company (other than as Disqualified Stock) and the granting or performance of registration rights in respect of any such Equity Interests;
(6) Restricted Payments and Permitted Investments that do not violate Section 4.07 hereof;
(7) payment of fees and reimbursement of expenses not in excess of the amounts specified in, or determined pursuant to, the Management Agreement as in effect on the date of this Indenture, and the other payments and agreements described above under the caption “Certain Relationships and Related Party Transactions” in the Offering Circular and any renewals, amendments, extensions or replacements of any such agreement or arrangements (so long as such renewals, amendments, extensions or replacements are not, taken as a whole, materially less favorable to the Holders of the Notes as determined by the Board of Directors in its reasonable good faith judgment) and the transactions contemplated thereby;
(8) Permitted Payments to Parent;
(9) any agreement or arrangements as in effect on the date of this Indenture and any renewals, amendments, extensions or replacements of any such agreement or arrangements (so long as such renewals, amendments, extensions or replacements are not, taken as a whole, materially less favorable to the Holders of the Notes as determined by the Board of Directors of the Company in its reasonable good faith judgment) and the transactions contemplated thereby;
(10) loans, guarantees of loans, advances and other extensions of credit to it or on behalf of current and former officers, directors, employees and consultants of the Company, a Restricted Subsidiary of the Company, or a direct or indirect parent of the Company made in the ordinary course of business and all payments and other transactions contemplated therebyor for the purpose of permitting such Persons to purchase Capital Stock of the Company or any direct or indirect parent of the Company or in connection with any relocation costs, in an amount not to exceed $2.0 million in the aggregate at any one time outstanding;
(411) sales or purchases of goods or provision of services, in the ordinary course of business, at terms no less favorable to the Company or the applicable Restricted Subsidiary, as determined in the good faith judgment of the Company, than those available to third party customers or suppliers, to or with an Affiliate which would constitute an Affiliate Transaction solely as a result of the Company or any payments of its Restricted Subsidiaries being in or under common control with such Affiliate and otherwise in compliance with the terms of this Indenture;
(12) repurchases of the Notes if repurchased on the same terms as offered to Investcorp and its Affiliates (whether or Persons that are not such Persons are Affiliates of the Company;
(13) transactions with a joint venture engaged in a Permitted Business; provided that all the outstanding ownership interests of such joint venture are owned only by the Company, its Restricted Subsidiaries and Persons that are not Affiliates of the Company;
(A14) any transactions with a Receivables Entity effected as part of a Qualified Receivables Transaction;
(15) the Transactions, and the payment of all fees and expenses related to the Transactions, in each case, as contemplated by the Offering Circular; and
(16) payments by the Company or any Restricted Subsidiary of the Company to any Principal for any financial advisory, financing, underwriting or placement services services, or in respect of other any investment banking activities, including including, without limitation, in connection with acquisitions or and divestitures, which payments are approved by the majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personfaith.
Appears in 2 contracts
Transactions with Affiliates. (a) The Company Borrower 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 (each of the foregoingBorrower (each, an "Affiliate Transaction"), unless:
(i) such the Affiliate Transaction Transaction, taken as a whole with all other related Affiliate Transactions, is on terms thatthat are no less favorable to the Borrower and its Subsidiaries, 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 by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company Borrower delivers to the Trustee Administrative Agent (aother 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 entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million10,000,000 but less than or equal to $25,000,000, a resolution of the Board Resolution of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 5.08 and that such Affiliate Transaction has been approved by a majority of the 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 $10.0 million25,000,000, an a positive opinion as to the fairness to the Holders Fair Market Value of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate TransactionsTransactions and, therefore, shall not be subject to the provisions of Section 5.08(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(ii) transactions between or among the Company Borrower and/or its Restricted Subsidiariesany of the Guarantors (other than Shared Facilities Arrangements);
(2iii) Permitted Investments and transactions with a Person that is an Affiliate of the Borrower (but not a Subsidiary of the Borrower) solely because the Borrower owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors' fees to Persons who are not otherwise Affiliates of the Borrower;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Borrower to Affiliates of the Borrower; provided that such Equity Interests are included in the Collateral;
(vi) Restricted Payments that are permitted by do not violate the provisions of this Agreement as described in Section 4.045.04 (Restricted Payments);
(3vii) employment agreements, employee benefit plans and related arrangements entered into loans or advances to employees in the ordinary course of business and all payments and other transactions contemplated therebynot to exceed $1,000,000 in the aggregate at any one time outstanding;
(4viii) any payments Permitted Tax Payments;
(ix) transactions under or pursuant to Investcorp and its Affiliates (whether or not such Persons are written agreements with Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or Borrower in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors place as of the Company in good faith and (B) date of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services this 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 (or modification thereto, 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 disadvantageous a Major Project Document; provided that no such amendment, modification or waiver alters any such agreement in a manner than is materially adverse to the Holders in any material respect) or any payment or other transaction contemplated by any interests of the foregoing; andLenders;
(6xi) Debt any amendments or modifications of, or waivers under, any Major Project Document, which are permitted by Section 4.03(b)(x5.10(b) to the extent such Debt is (Business Activities) and are on terms that, taken as a whole, that are no less favorable to the Company Borrower or its relevant Subsidiary (as certified to the relevant Restricted Subsidiary Administrative Agent in an Officer's Certificate) than those that would have been obtained in a comparable transaction by the Borrower or such Subsidiary with an unrelated Person; and
(xii) any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Calpine Corp), Credit and Guarantee Agreement (Calpine Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer lease or otherwise dispose of transfer any of its properties property or assets to, or purchase purchase, lease or otherwise acquire any property or assets from, or enter into or make or amend otherwise engage in any transaction, contract, agreement, understanding, loan, advance or guarantee other transactions with, any of its Affiliates involving aggregate payments, for any such transaction or for the benefit of, any Affiliate series of related transactions (each of the foregoing, an "“Affiliate Transaction"”), in excess of $15,000,000, unless:
(i) such Affiliate Transaction is Transactions are at prices and on terms thatand conditions, taken as a whole, are no not materially less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been could be obtained on an arm’s-length basis from unrelated third parties or, if in a the good-faith judgment of the Company no comparable transaction by is available with which to compare such transactions, such Affiliate Transactions are otherwise fair to the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued as determined by the Company in good faith; or
(ii) with respect to such Affiliate Transactions, the Company has obtained a letter from an investment banking, appraisal or accounting firm independent financial advisor stating that such transactions are fair from a financial point of national standingview.
(b) The foregoing provisions of Section 4.07(a) shall will not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company and/or and its Restricted Subsidiaries not involving any other Affiliate;
(ii) any Restricted Payment (including any transaction specifically excluded from the definition of the term “Restricted Payments”) that is permitted under Section 4.08 and any Permitted Investment;
(iii) the payment of reasonable and customary fees and expenses, and the provision of customary indemnification to directors, officers, employees, members of management and consultants of the Company and the Subsidiaries;
(2iv) Permitted Investments and Restricted Payments that sales or issuances of Equity Interests to Affiliates of the Company which are otherwise permitted or not restricted by Section 4.04this Indenture;
(3v) employment agreements, employee benefit plans loans and related arrangements other transactions by and among the Company and/or the Subsidiaries to the extent permitted under the covenants contained in this Indenture;
(vi) transactions with joint ventures for the purchase or sale of goods and services entered into in the ordinary course of business and all payments and other transactions contemplated therebybusiness;
(4vii) any payments employment and severance arrangements (including options to Investcorp and its Affiliates (whether or not such Persons are Affiliates purchase Equity Interests of the Company, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans) between the Company and any Restricted Subsidiary and their directors, officers, employees, members of management and consultants in the ordinary course of business;
(Aviii) for any financial advisorythe existence of, financing, underwriting or placement services or in respect and the performance of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors obligations of the Company or any of its Restricted Subsidiaries under the terms of, any agreement in good faith existence or contemplated as of the Issue Date, as these agreements may be amended, restated, amended and (B) restated, supplemented, extended, renewed or otherwise modified from time to time; provided, however, that any future amendment, restatement, amendment and restatement, supplement, extension, renewal or other modification entered into after the Issue Date will be permitted to the extent that its terms are not more disadvantageous in any material respect, taken as a whole, to the Holders than the terms of annual management, consulting and advisory fees and related expensesthe agreements on the Issue Date;
(5ix) any agreement in effect on between any Person and an Affiliate of such Person existing at the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and time such Person is acquired by or merged into the Company and or its Restricted Subsidiaries pursuant to the Brevard lease agreement) terms of this Indenture; provided that such agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respectrespect in the good-faith judgment of the Company when taken as a whole as compared to such agreement as in effect on the date of such acquisition or merger);
(x) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by the Company and the Restricted Subsidiaries in such joint venture), non-Wholly Owned Subsidiaries and Unrestricted Subsidiaries in the ordinary course of business to the extent otherwise permitted under the definition of “Permitted Investments”;
(xi) transactions with 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, which are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company, or are on terms at least as favorable, in all material respects, as might reasonably have been obtained at such time from an unaffiliated party;
(xii) the entering into of any Tax sharing agreement or arrangement to the extent payments under such agreement or arrangement would otherwise be permitted under Section 4.08 hereof;
(xiii) any contribution to the capital of the Company or any payment of its Restricted Subsidiaries;
(xiv) the formation and maintenance of any consolidated group or subgroup for Tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xv) transactions undertaken in good faith (as certified by a Responsible Officer of the Company) for the purpose of improving the consolidated Tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture;
(xvi) any other transaction contemplated with an Affiliate, which is approved by any a majority of disinterested members of the foregoingboard of directors (or equivalent governing body) of the Company in good faith; and
(6xvii) Debt permitted (A) investments by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to any Affiliate in securities of the Company or the relevant any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliate in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other investors on the same or more favorable terms, and (B) payments to such Affiliates in respect of securities of the Company or any Restricted Subsidiary contemplated in the foregoing subclause (A) or that were acquired from Persons other than those that would have been obtained the Company or any Restricted Subsidiary, in each case, in accordance with the terms of such securities.
(c) If the Company or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a comparable transaction with Person which is not an unrelated PersonAffiliate, the purchase or acquisition by an Affiliate of the Company or any Restricted Subsidiary of an interest in all or a portion of the assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or acquisition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Company or any Restricted Subsidiary of an interest in all or a portion of the assets or properties sold shall not be deemed an Affiliate Transaction (or cause such sale or other disposition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction).
Appears in 2 contracts
Sources: Indenture (Coty Inc.), Indenture (Coty Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany involving aggregate payments of consideration in excess of $25.0 million (each, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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; and
(ii2) in the event of any Affiliate Transaction or series of related Affiliate Transactions involving the transfer by the Company delivers to the Trustee or any of its Restricted Subsidiaries of assets having an aggregate Fair Market Value in excess of (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 50.0 million, a Board Resolution certifying that the terms of such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the disinterested members of the Board of Directors of the Company and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 75.0 million, an opinion as to the fairness to the Holders Company or the relevant Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):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 or director indemnification agreement, consultant agreement or any similar arrangement, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(5) Restricted Payments that are permitted by do not violate Section 4.044.07 hereof;
(36) employment agreementssales 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 Securitization Program and transactions between a Receivables Subsidiary and any Person in which the Receivables Subsidiary has an Investment;
(7) loans or advances to, employee benefit plans and related arrangements entered into or Guarantees of Indebtedness of, employees, officers or directors made in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) for Company or 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 approved by the Board of Directors Restricted Subsidiary of the Company in good faith and (B) an aggregate amount not in excess of annual management$15.0 million with respect to all loans, consulting and advisory fees and related expensesadvances or Guarantees made since the Issue Date;
(5) any agreement 8) transaction or series of related transactions in 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 which the Company and the Brevard lease agreement) or any amendment thereto (so long as any such amendment is not disadvantageous Restricted Subsidiary delivered to the Holders in any material respect) Trustee a letter issued by an accounting, appraisal or any payment or other transaction contemplated by any investment banking firm of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) national standing as to the extent fairness to the Company or such Debt is on terms thatRestricted 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 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;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the 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 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 and its Restricted Subsidiaries; and
(11) any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of Notes when taken as a whole as compared to the applicable agreement as in effect on the Issue Date).
Appears in 2 contracts
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, 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; and
Person and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 1.0 million, a Board Resolution and an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the 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 $10.0 5.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
; provided that (br) The provisions the application of Section 4.07(athe proceeds of the offering of the Notes pursuant to the Offering Memorandum and the transactions entered into in connection therewith in the manner contemplated in the section of the Offering Memorandum titled "Use of Proceeds", (s) shall not prohibit (andcapital contributions, the following shall not be deemed advances, loans or other investments made by Parent to be Affiliate Transactions):
(1) transactions between or among the Company and/or or any of its Restricted Subsidiaries;
, (2t) Permitted Investments (I) payments under the Management Agreement in an amount not to exceed $300,000 in any twelve-month period and (II) after the first anniversary of the original issuance of the Notes, additional payments under the Management Agreement in an amount not to exceed $700,000 in any twelve-month period, provided that the Company's Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such payment under the Management Agreement is made, after giving pro forma effect to such payment, is equal to or greater than 2.25 to 1 (in each case, plus reasonable expenses incurred in connection with and reimbursable under the Management Agreement), (u) payments by the Company or any of its 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 contemplated thereby;
(4) any payments Subsidiaries to Investcorp and Mentmore and/or its Affiliates (whether or not such Persons are Affiliates of the Company) (A) made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including 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 and faith, (Bv) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) payments under tax sharing agreements to the extent such Debt is on terms thatpayments do not otherwise exceed the tax liability the Company would have had were it not part of a consolidated group, taken as a whole(w) any employment agreement, are no less favorable compensation agreement or employee benefit arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, (x) transactions between or among Parent, the Company and/or its Restricted Subsidiaries, (y) any other payment or reimbursement of reasonable and customary fees and expenses incurred by an Affiliate for services rendered to the Company or the relevant any of its Subsidiaries not to exceed $100,000 in any twelve-month period (without duplication for any amounts paid pursuant to any other clause of this covenant) and (z) Restricted Subsidiary than those Payments that would have been obtained are permitted under Section 4.11 hereof, in a comparable transaction with an unrelated Personeach case, shall not be deemed Affiliate Transactions.
Appears in 2 contracts
Sources: Indenture (Massic Tool Mold & Die Inc), Credit Agreement (Massic Tool Mold & Die Inc)
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate TransactionAFFILIATE TRANSACTION"), unless:
(ia) such Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; Person and
(iib) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause Trustee:
(i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration payments in excess of $10.0 1.0 million or any series of Affiliate Transactions with an Affiliate involving aggregate payments in excess of $1.0 million, a resolution of the Board of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with Section 4.11 (a) and such Affiliate Transaction is approved by a majority of the disinterested directors on the Board of Directors; and
(ii) with respect to any Affiliate Transaction or any series of Affiliate Transactions involving aggregate payments in excess of $25.0 million, an opinion as to the fairness to the Holders of Company or such Affiliate Transaction Subsidiary from a financial point of view issued by an investment banking, appraisal or accounting banking firm of national standing.
standing with high yield experience together with an Officer's Certificate to the effect that such opinion complies with this clause (b) The provisions of Section 4.07(a) shall not prohibit (andii); provided, however, that notwithstanding the foregoing provisions, the following shall not be deemed to be Affiliate Transactions)::
(1) any employment agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or its predecessor or such Subsidiary;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and Restricted Payments that are transactions permitted by the provisions of Section 4.044.09 hereof;
(34) employment agreementsLiens permitted under Section 4.07 hereof which are granted by the Company or any of its Subsidiaries to an unrelated Person for the benefit of the Company or any other Subsidiary of the Company;
(5) any transaction pursuant to an agreement in effect on the Issuance Date;
(6) the incurrence of Indebtedness by a Restricted Subsidiary where such Indebtedness is owed to the holders of the Equity Interests of such Restricted Subsidiary on a pro rata basis and on substantially identical principal financial terms;
(7) management, employee benefit plans and related arrangements operating, service or interconnect agreements entered into in the ordinary course of business with any Cable Business in which the Company or any Restricted Subsidiary has an Investment and all payments which is not a Cable Controlled Subsidiary (and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors no Affiliate of the Company in good faith and (B) is an Affiliate other than as a result of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoingInvestment); and
(6) 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 with an unrelated Person8) any tax sharing agreement.
Appears in 2 contracts
Sources: Indenture (NTL Communications Corp), Indenture (NTL Communications Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not permit any of its the 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")”) involving aggregate consideration in excess of $7.5 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would could reasonably have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated unaffiliated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 25.0 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Company and any direct parent of the Company; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby[Reserved];
(4iv) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any payments to Investcorp and its Affiliates (whether Restricted Subsidiary or not such Persons are Affiliates any direct or indirect parent of the Company;
(v) [Reserved];
(Avi) for transactions in which the Company or any of the Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial advisorypoint of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to directors, financingofficers, underwriting employees or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments consultants that are approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5viii) the existence of, or the performance by the Company or any of its Restricted Subsidiaries under the terms of, any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by senior management or the Board of Directors of the Company;
(ix) the existence of, or the performance by the Company or any of the Restricted Subsidiaries of their obligations under the terms of, any stockholders agreement or investors rights agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date, and any agreement described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 (including the documents incorporated therein by reference), and, in each case, any amendment thereto or similar agreements that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of the Restricted Subsidiaries of their 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 (ix) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or any such new agreement are no less favorable not otherwise more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date;
(x) the execution of the Transactions and the payment of all fees and expenses related to the Transactions;
(xi) (A) transactions with customers, clients, suppliers, toll manufacturers 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 and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the relevant Restricted Subsidiary than those that would senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a comparable transaction with Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(xiv) 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 the Company or any direct or indirect parent of the Company or of a Restricted Subsidiary, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 4.04(b)(xii);
(xvi) any contribution to the capital of the Company;
(xvii) transactions permitted by, and complying with, Section 5.01;
(xviii) transactions between the Company or any of the Restricted Subsidiaries and any Person, a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that such director abstains from voting as a director of the Company or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by the Company or any of the Restricted Subsidiaries in the ordinary course of business; and
(xxi) intercompany transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Company in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture.
Appears in 2 contracts
Sources: Indenture (Momentive Performance Materials Inc.), Indenture (Momentive Performance Materials Inc.)
Transactions with Affiliates. (a) The Company Borrowers shall ---------------------------- not, and 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, contractincluding, agreementwithout limitation, understandingany purchase, loansale, advance lease or guarantee withexchange of property, the rendering of any service or for the benefit ofpayment of any management, advisory or similar fees, with any Affiliate (each other than the Company, any Restricted Subsidiary or any member of the foregoing, an "Affiliate Transaction"), unless:
NRG Parent Group) unless such transaction is (i) such Affiliate Transaction is on otherwise permitted under this Agreement or (ii) either (x) upon fair and reasonable terms that, taken as a whole, are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those that it would have been obtained obtain in a comparable arm's length transaction with a Person that is not an Affiliate or (y) structured as a commercially reasonable and fair allocation of costs, including corporate overhead costs; provided, however, that the foregoing shall not prohibit (a) any employment agreement or director's engagement agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Company or any of the Restricted Subsidiaries in the ordinary course of business or approved by the board of directors of the Company or such Restricted Subsidiary with an unrelated PersonSubsidiary; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its the Restricted Subsidiaries;
Subsidiaries that are evidenced or contemplated by licensing, servicing or trust agreements in effect on the Closing Date; (2c) Permitted Investments and payment of reasonable directors' fees; (d) any issuance of Capital Stock (other than Disqualified Stock) of the Company to Affiliates of the Company; (e) Restricted Payments that are permitted by under Section 4.04;
8.2; (3f) employment agreements, employee benefit plans and related arrangements entered into loans or advances to employees in the ordinary course of business and all payments and other transactions contemplated thereby;
not to exceed $10,000,000 in the aggregate outstanding at any time; (4g) any payments to Investcorp and its Affiliates (whether agreement, instrument or not such Persons are Affiliates arrangement as in effect as of the CompanyClosing Date, or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) (A) for in any financial advisory, financing, underwriting replacement agreement thereto so long as any such amendment or placement services or replacement agreement is not more disadvantageous to the Lenders in any material respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by than the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any original agreement as in effect on the Closing Date as reasonably determined by the Company; (h) any pro rata distribution (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998a rights offering) between the Berkshire Companies Limited Partnership and to all holders of a class of Capital Stock or Debt of 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatRestricted Subsidiaries, taken as a whole, including Persons who are no less favorable to Affiliates of the Company or any of the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated PersonSubsidiaries and (i) transactions otherwise expressly permitted hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (NRG Energy, Inc.), Revolving Credit Agreement (Genon Americas Generation LLC)
Transactions with Affiliates. (a) The Company 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 (each of the foregoingeach, an "Affiliate Transaction"), unless:
: (ia) such Affiliate Transaction is on terms that, taken as a whole, 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; and
and (iib) the Company delivers to the Trustee (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this covenant and, if an opinion meeting the requirements set forth in clause (iii) above and of this paragraph has not been obtained, that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors who have no direct financial interest in such Affiliate Transaction (other than as a stockholder of the Company or Holdings), and (bii) with respect to (x) any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 20.0 million, or (y) any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million where none of the members of the Board of Directors qualify as having no direct financial interest in such Affiliate Transaction (other than as a stockholder of the Company or Holdings), an opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, ; provided however that the following items shall not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of this paragraph:
(1) any transaction by the Company or any Restricted Subsidiary with an Affiliate directly related to the purchase, sale or distribution of products in the ordinary course of business consistent with industry practice which has been approved by a majority of the members of the Board of Directors who are disinterested with respect to such transaction;
(2) any employment agreement or arrangement or employee benefit plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(3) transactions between or among the Company and/or its Restricted Subsidiaries;
(24) Permitted Investments payment of reasonable directors fees and provisions of customary indemnification to directors, officers and employees of the Company and its Restricted Subsidiaries;
(5) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(6) Restricted Payments that are permitted by the provisions of Section 4.044.07 hereof and under clauses (8) and (9) of the definition of "Permitted Investments";
(37) employment agreements, employee benefit plans and related arrangements entered into in transactions pursuant to the ordinary course of business and all payments and other transactions contemplated therebyTax Sharing Agreement;
(4) 8) contractual arrangements existing on the date hereof, and any payments renewals, extensions, implementations or modifications thereof that are not materially adverse to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesHolders;
(59) any agreement in 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 foregoingConcurrent Financing Transactions; and
(610) 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 Parent Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated PersonMerger.
Appears in 2 contracts
Sources: Indenture (Xm Satellite Radio Inc), Indenture (Xm Satellite Radio Holdings Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- Borrower will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make any payment todirectly or indirectly, or sell, lease, transfer lease or otherwise dispose of transfer any of its properties property or assets to, or purchase purchase, lease or otherwise acquire any property or assets from, or enter into or make or amend otherwise engage in any transaction, contract, agreement, understanding, loan, advance or guarantee other transactions with, or for the benefit ofany of its Affiliates, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unlessexcept:
(a) payment of compensation to directors, officers, and employees of the Borrower and the Subsidiaries in the ordinary course of business;
(b) payments in respect of transactions required to be made pursuant to agreements or arrangements in effect on the Second Restatement Effective Date and set forth on Schedule 6.09;
(c) transactions involving the acquisition of inventory in the ordinary course of business; provided that (i) the terms of such Affiliate Transaction is on terms thattransaction are (A) set forth in writing, taken (B) in the best interests of the Borrower or such Subsidiary, as a wholethe case may be, are and (C) no less favorable to the Company Borrower or such Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been could be obtained in a comparable arm’s length transaction by with a Person that is not an Affiliate of the Company Borrower or such Restricted a Subsidiary with an unrelated Person; and
, (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving if such transaction involves aggregate consideration payments or value in excess of $3.0 million75,000,000, a Board Resolution certifying that such Affiliate Transaction complies with clause the board of directors of the Borrower (i) above and that such Affiliate Transaction has been approved by including a majority of the disinterested members of the Board board of Directors directors) approves such transaction and, in its good faith judgment, believes that such transaction complies with clauses (i)(B) and (bC) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.this paragraph;
(bd) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1i) transactions between or among the Company Borrower and/or its Restricted Subsidiariesone or more Subsidiary Loan Parties, (ii) sales of Securitization Assets to Securitization Vehicles in Securitizations permitted by Sections 6.01 and 6.05, (iii) [intentionally omitted], (iv) transactions under, involving, related to and/or in connection with the Acquisition and documents related thereto including, (A) the Stock Purchase Agreement, dated as of August 23, 2006, by and between the Borrower and The ▇▇▇▇ ▇▇▇▇▇ Group (PJC) Inc., (B) the Stockholder Agreement, dated as of August 23, 2006, between the Borrower, The ▇▇▇▇ ▇▇▇▇▇ Group (PJC) Inc., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ and (C) the Registration Rights Agreement, dated as of August 23, 2006, by and between the Borrower and The ▇▇▇▇ ▇▇▇▇▇ Group (PJC) Inc. and (v) the Transition Services Agreement, dated as of June 4, 2007, by and between the Borrower and the Seller; provided that the terms of the transactions referred to in clauses (iii), (iv) and (v) above are in the best interest of the Borrower, such Subsidiary Loan Party or the Subsidiary that is a party thereto, as the case may be;
(2e) Permitted Investments issuances of Preferred Stock of the Borrower (and Restricted Payments transactions that are permitted by Section 4.04;
(3necessary to effect such issuances) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors pay-in-kind obligations of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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) Borrower relating to Series G Preferred Stock 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 foregoingSeries H Preferred Stock; and
(6f) Debt any other Affiliate transaction not otherwise permitted by pursuant to this Section 4.03(b)(x6.09; provided that (i) to the extent terms of such Debt is on terms thattransaction are (A) set forth in writing, taken (B) in the best interests of the Borrower or such Subsidiary, as a wholethe case may be, are and (C) no less favorable to the Company Borrower or such Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been could be obtained in a comparable arm’s length transaction with a Person that is not an unrelated PersonAffiliate of the Borrower or a Subsidiary, (ii) if such transaction involves aggregate payments or value in excess of $25,000,000 in any consecutive 12-month period, the board of directors of the Borrower (including a majority of the disinterested members of the board of directors) approves such transaction and, in its good faith judgment, believes that such transaction complies with clauses (i)(B) and (C) of this paragraph and (iii) if such transaction (other than any transaction necessary for the redemption or exchange of the Borrower’s Series G Preferred Stock or Series H Preferred Stock) involves aggregate payments or value in excess of $50,000,000 in any consecutive 12-month period, the Borrower obtains a written opinion from an independent investment banking firm or appraiser of national prominence, as appropriate, to the effect that such transaction is fair to the Borrower or such Subsidiary, as the case may be, from a financial point of view.
Appears in 2 contracts
Sources: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Transactions with Affiliates. (a) The Company Targa Resources Partners 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 Targa Resources Partners (each individually or as a series of the foregoingrelated transactions, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Targa Resources Partners or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Targa Resources Partners or such Restricted Subsidiary with an unrelated Person; and
(ii2) the Company Targa Resources Partners delivers to the Trustee Trustee:
(a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (bA) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 25.0 million, a resolution adopted by a majority of the disinterested members of the Board of Directors of the General Partner 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
(B) with respect to any Affiliate Transaction involving aggregate consideration in excess of $50.0 million, a written opinion as to the fairness to the Holders Targa Resources Partners or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national recognized industry standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, shall not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, equity award, equity option or equity appreciation agreement or plan or any similar arrangement entered into by Targa Resources Partners or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company Targa Resources Partners and/or its Restricted Subsidiaries;
(23) Permitted Investments and transactions with a Person (other than an Unrestricted Subsidiary of Targa Resources Partners) that is an Affiliate of Targa Resources Partners solely because Targa Resources Partners owns, directly or through a Restricted Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(34) employment any issuance of Equity Interests (other than Disqualified Equity) of Targa Resources Partners to Affiliates of Targa Resources Partners;
(5) Restricted Payments or Permitted Investments that do not violate Section 4.07 hereof;
(6) customary compensation, indemnification and other benefits made available to officers, directors or employees of Targa Resources Partners or any Affiliate of Targa Resources Partners, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(7) in the case of contracts for purchase, gathering, processing, fractionating, sale, transportation and marketing of crude oil, natural gas, condensate and natural gas liquids, hedging agreements, employee benefit plans and related arrangements production handling, operating, construction, terminaling, storage, lease, 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 Targa Resources Partners or any Restricted Subsidiary and all payments and other transactions contemplated therebythird parties, or if neither Targa Resources Partners nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those available from third parties on an arm’s-length basis;
(48) 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; and
(9) the existence of, or the performance by Targa Resources Partners or any Restricted Subsidiary of its obligations under the terms of, (i) any payments agreements that (x) are described in the annual report on Form 10-K of Targa Resources Partners for the year ended December 31, 2009 under the heading “Certain Relationships and Related Party Transactions, and Director Independence” to Investcorp and its Affiliates which it is a party on the terms described in such Annual Report on Form 10-K, (whether y) are otherwise described in Schedule 4.11 to this Indenture, or not such Persons are Affiliates (z) form part of an Affiliate Transaction that meets the Companyrequirements of subclauses (1) (A) 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 approved by the Board of Directors of the Company in good faith and (B2) of annual managementSection 4.11(a) hereof, consulting and advisory fees and related expenses;
(5ii) any agreement in effect on amendments to such agreements and (iii) any similar agreements which it may enter into thereafter; provided, however, that the Closing Date (including existence of, or 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) performance by Targa Resources Partners or any Restricted Subsidiary of its obligations under, any future amendment thereto to such agreements or under any such similar agreements shall only be permitted by this clause (so long as 9) to the extent that the terms of any such amendment is or new agreement, taken as a whole, are either on terms comparable to the agreements referred to in the preceding clause (i) or are not disadvantageous less favorable to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) 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 with an unrelated Person.
Appears in 2 contracts
Sources: Indenture (Targa Resources Partners LP), Indenture (Targa Resources Partners LP)
Transactions with Affiliates. (a) The Parent and the Company shall ---------------------------- will not, and shall will not permit any of its their 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 foregoingCompany (each, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Parent, the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent, the Company or such Restricted Subsidiary with an unrelated Person; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, a resolution of the Board Resolution of Directors of the Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i1) above 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 of the Parent; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 25.0 million, an opinion as to the fairness to the Holders Parent, the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) any employment agreementsagreement, employee benefit plans and related arrangements plan, officer or director indemnification agreement, consulting agreement, severance agreement, insurance policy or any similar arrangement entered into by the Parent, the Company or any of their Restricted Subsidiaries in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments pursuant thereto, and, with respect to Investcorp and its Affiliates (whether or not such Persons are Affiliates consulting agreements only, the terms of the Company) (A) 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 have been approved by the audit committee of the Board of Directors of the Parent;
(2) transactions between or among the Parent, the Company in good faith and and/or their Restricted Subsidiaries;
(B3) transactions with a Person (other than an Unrestricted Subsidiary of annual managementthe Parent) that is an Affiliate of the Company solely because the Parent owns, consulting and advisory directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors’ fees and related expensesto Persons who are not otherwise Affiliates of the Parent;
(5) any agreement transaction pursuant to any contract in effect existence 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 date of the foregoingoriginal issuance of the Notes;
(6) any issuance of Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of the Parent; and
(67) Debt permitted by Restricted Payments that do not violate 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 with an unrelated Person4.07 hereof.
Appears in 2 contracts
Sources: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Transactions with Affiliates. (a) The the Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "Affiliate Transaction"), involving aggregate consideration in excess of $1.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors of the Company certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members disinterested members, if any, of the Board of Directors and of the Company; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 25.0 million, an opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or consistent with past practice and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company and/or any of its Restricted Subsidiaries;
(23) Permitted Investments and 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 Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(34) employment agreementspayment of reasonable fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries or any Parent;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or to any director, officer, employee benefit plans or consultant of the Company or any Parent, and the granting and performance of registration rights;
(6) Restricted Payments and Investments that do not violate Section 4.07 hereof;
(7) the entering into any agreement to pay, and the payment of, customary annual management, consulting, monitoring and advisory fees to the Equity Investors in an amount not to exceed in any four quarter period the greater of (x) $5.0 million and (y) 2.0% of Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such period;
(8) loans or advances to employees or consultants in the ordinary course of business or consistent with past practice not to exceed $2.5 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 arrangements 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, in the good faith judgment of the Company's Board of Directors, 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;
(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 payments the costs and other transactions contemplated therebybenefits 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 good faith judgment of the Company's Board of Directors 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;
(413) any payments to Investcorp (x) guarantees of performance by the Company and its Affiliates Restricted Subsidiaries of Unrestricted Subsidiaries of the Company in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (whether or not such Persons are Affiliates y) pledges of Equity Interests of Unrestricted Subsidiaries of the Company for the benefit of lenders of Unrestricted Subsidiaries of the Company;
(14) if such Affiliate Transaction is with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary where such Person is treated no more favorably than the holders of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary;
(A15) transactions effected pursuant to agreements in effect on the Issue Date and any amendment, modification or replacement of such agreement (so long as such amendment or replacement is not, in the good faith judgment of the Company's Board of Directors, materially more disadvantageous to the Holders of the Notes, taken as a whole, than the original agreement as in effect on the Issue Date);
(16) payments to the Equity Investors made for any financial advisory, financing, underwriting financing 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 Company's Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesDirectors;
(517) any agreement in 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) restructuring or any amendment thereto (so long as any such amendment is not disadvantageous similar transactions contemplated to be effected pursuant to the Holders in any material respect) or any payment or other transaction contemplated by any terms of the foregoingHoldings LLC Agreement or the Dresser-Rand Holdings, LLC Agreement; and
(618) 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 with an unrelated Personissuance of Management Notes.
Appears in 2 contracts
Sources: Indenture (Dresser-Rand Group Inc.), Indenture (Dresser-Rand Group Inc.)
Transactions with Affiliates. (a) The Company Issuers shall ---------------------------- not, and shall not permit any of its the 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 Issuers (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company relevant Issuer or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company such Issuer or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 50.0 million, the Issuers deliver to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Company, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among an Issuer and/or any of the Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of Company and any direct parent of the Company; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and/or its Restricted Subsidiariesand such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and indemnity provided on behalf of, officers, directors, employees or consultants of an Issuer, any Restricted Subsidiary, or any direct or indirect parent of the Company;
(iv) transactions in which any 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 such Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(v) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Company in good faith;
(vi) 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 Notes in any material respect than the original agreement as in effect on the Issue Date, as determined in good faith by the Issuers) or any transaction contemplated thereby;
(vii) the existence of, or the performance by an Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders or other agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date, and any transaction, agreement or arrangement described in the Plan of Arrangement Circular and, in each case, 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 an Issuer or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (vii) 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 holders of the Notes in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date or described in the Plan of Arrangement Circular, as determined in good faith by the Issuers;
(viii) the execution of the Arrangement Transactions, the July Transactions, the January Transactions and the Exchange Offer, and the payment of all fees, expenses, bonuses and awards related to the Arrangement Transactions, the July Transactions, the January Transactions and the Exchange Offer, including fees to the Sponsors;
(ix) (A) transactions with 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 or consistent with past practice or industry norm and otherwise in compliance with the terms of this Indenture, which are fair to the Issuers and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and all payments and other transactions contemplated therebyor consistent with past practice or industry norm;
(4x) any payments transaction pursuant to Investcorp any Permitted Securitization Financing;
(xi) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(xii) 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 its Affiliates (whether stock ownership plans or not such Persons are Affiliates similar employee benefit plans approved by the Board of Directors of the Company, any direct or indirect parent of the Company or of a Restricted Subsidiary, as appropriate, in good faith;
(xiii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii) and the performance under any such agreement or arrangement;
(xiv) any contribution to the capital of the Company;
(xv) transactions permitted by, and complying with, Section 5.01;
(xvi) transactions between any Issuer or any Restricted Subsidiary and any Person, a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that such director abstains from voting as a director of the Company or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xix) any employment agreements entered into by an Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(a) the entering into of any agreement (and any amendment or modification of any such agreement so long as, in the good faith judgment of the Board of Directors of the Company, any such amendment or modification is not more disadvantageous, taken as a whole, to holders in any material respect as compared to the agreement as in effect on the Issue Date) to pay, and the payment of, monitoring, consulting, management, transaction, advisory or similar fees payable to the Sponsors (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of $4.0 million and 2.0% of Pro Forma EBITDA of the Issuers for the most recently ended four full fiscal quarters for which financial statements have been internally prepared, plus reasonable out-of-pocket costs and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (1) above originally) plus (B) in an amount not to exceed 1% of transaction value with respect to any transaction in which any Sponsor provides any transaction, advisory or other services, including the Arrangement Transactions, and (b) the payment of the present value of all amounts payable pursuant to any agreement described in clause (xx)(a) in connection with the termination of such agreement;
(xxi) payments by an Issuer or any of the Restricted Subsidiaries to any of the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5xxii) any agreement transactions undertaken in effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement good faith (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreement) certified by a responsible financial 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 accounting officer of the foregoingIssuers in an Officer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuers and their Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
(6xxiii) Debt permitted investments 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 Sponsors in securities of an Issuer or the relevant any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses Incurred by the Sponsors in connection therewith) so long as (i) the investment is being generally offered to other investors on the same or more favorable terms and (ii) the investment constitutes less than those 5% of the proposed or outstanding issue amount of such class of securities.
(c) Notwithstanding Section 4.07(a), the Sponsors and any portfolio company that would have been obtained is an Affiliate of the Sponsors shall not be considered an Affiliate of the Issuers or their Subsidiaries with respect to any transaction, so long as such transaction is in a comparable transaction with an unrelated Personthe ordinary course of business.
Appears in 2 contracts
Sources: Indenture (Muzak Capital, LLC), Indenture (Muzak Capital, LLC)
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate TransactionAFFILIATE TRANSACTION"), unless:
(ia) such Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(iib) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause Trustee:
(i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration payments in excess of $10.0 5.0 million or any series of Affiliate Transactions with an Affiliate involving aggregate payments in excess of $5.0 million, a resolution of the Board of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with Section 4.11 (a) and such Affiliate Transaction is approved by a majority of the disinterested directors on the Board of Directors; and
(ii) with respect to any Affiliate Transaction or any series of Affiliate Transactions involving aggregate payments in excess of $25.0 million, an opinion as to the fairness to the Holders of Company or such Affiliate Transaction Subsidiary from a financial point of view issued by an investment banking, appraisal or accounting banking firm of national standing.
standing with high yield experience together with an Officer's Certificate to the effect that such opinion complies with this clause (b) The provisions of Section 4.07(a) shall not prohibit (andii); provided, however, that notwithstanding the foregoing provisions, the following shall not be deemed to be Affiliate Transactions)::
(1) any employment agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or its predecessor or such Subsidiary;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and Restricted Payments that are transactions permitted by the provisions of Section 4.044.09 hereof;
(34) employment agreementsLiens permitted under Section 4.07 hereof which are granted by the Company or any of its Subsidiaries to an unrelated Person for the benefit of the Company or any other Subsidiary of the Company;
(5) any transaction pursuant to an agreement in effect on the Issuance Date;
(6) the incurrence of Indebtedness by a Restricted Subsidiary where such Indebtedness is owed to the holders of the Equity Interests of such Restricted Subsidiary on a pro rata basis and on substantially identical principal financial terms;
(7) management, employee benefit plans and related arrangements operating, service or interconnect agreements entered into in the ordinary course of business with any Cable Business in which the Company or any Restricted Subsidiary has an Investment and all payments which is not a Cable Controlled Subsidiary (and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors no Affiliate of the Company in good faith and (B) is an Affiliate other than as a result of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoingInvestment); and
(6) 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 with an unrelated Person8) any tax sharing agreement.
Appears in 2 contracts
Sources: Indenture (NTL Communications Corp), Indenture (NTL Communications Corp)
Transactions with Affiliates. (a) The Company MHGE Holdings shall ---------------------------- not, and shall not permit any of its the 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 MHGE Holdings (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $20.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company MHGE Holdings or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company MHGE Holdings or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 40.0 million, MHGE Holdings delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of MHGE Holdings, approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among MHGE Holdings and/or any of the Company and/or its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of MHGE Holdings and any direct parent of MHGE Holdings; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of MHGE Holdings and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and indemnity provided on behalf of, officers, directors, employees or consultants of MHGE Holdings, any Restricted Subsidiary, or any direct or indirect parent of MHGE Holdings;
(iv) transactions in which MHGE Holdings 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 MHGE Holdings or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(v) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of MHGE Holdings in good faith;
(vi) 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 Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by MHGE Holdings;
(vii) the existence of, or the performance by MHGE Holdings or any Restricted Subsidiary of its obligations under the terms of any stockholders 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 MHGE Holdings or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (vii) 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 holders of the Notes in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date;
(viii) the execution of the Transactions, and the payment of all fees and expenses related to the Transactions, including fees paid to the Sponsors;
(ix) (A) transactions with 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, which are fair to MHGE Holdings and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of MHGE Holdings, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and all payments and other transactions contemplated therebyconsistent with past practice or industry norm;
(4x) any payments transaction effected as part of a Qualified Receivables Financing;
(xi) the issuance of Equity Interests (other than Disqualified Stock) of MHGE Holdings to Investcorp any Person;
(xii) 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 MHGE Holdings or any direct or indirect parent of MHGE Holdings or of a Restricted Subsidiary, as appropriate, in good faith;
(xiii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xiv) any contribution to the capital of MHGE Holdings;
(xv) transactions permitted by, and complying with, Section 5.01;
(xvi) transactions between MHGE Holdings or any Restricted Subsidiary and any Person, a director of which is also a director of MHGE Holdings or any direct or indirect parent of MHGE Holdings; provided, however, that such director abstains from voting as a director of MHGE Holdings or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xix) any employment agreements entered into by MHGE Holdings or any Restricted Subsidiary in the ordinary course of business;
(a) the entering into of any agreement (and any amendment or modification of any such agreement, so long as, in the good faith judgment of the Board of Directors of MHGE Holdings, any such amendment or modification is not more disadvantageous, taken as a whole, to holders in any material respect as compared to the agreement as in effect on the Issue Date) to pay, and the payment of, monitoring, consulting, management, transaction, advisory or similar fees payable to the Sponsors in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of $10.0 million and 3.0% of EBITDA of MHGE Holdings and its Affiliates Restricted Subsidiaries for such fiscal year, plus reasonable out-of-pocket costs and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (whether or not 2) any deferred fees (to the extent such Persons are Affiliates fees were within such amount in clause (1) above originally) and (b) the payment of the Companypresent value of all amounts payable pursuant to any agreement described in clause (xx)(a) in connection with the termination of such agreement;
(Axxi) payments by MHGE Holdings or any of its Restricted Subsidiaries to any of the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Company MHGE Holdings in good faith;
(xxii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of MHGE Holdings in an Officers’ Certificate) for the purpose of improving the consolidated tax efficiency of MHGE Holdings and (B) its Subsidiaries and not for the purpose of annual management, consulting and advisory fees and related expensescircumventing any covenant set forth in this Indenture;
(5xxiii) any agreement investments by the Sponsors in 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) securities of MHGE Holdings or any amendment thereto Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by the Sponsors in connection therewith) so long as any such amendment (i) the investment is not disadvantageous being generally offered to other investors on the Holders in any material respectsame or more favorable terms and (ii) or any payment or other transaction contemplated by any the investment constitutes less than 5.0% of the foregoingproposed or outstanding issue amount of such class of securities; and
(6xxiv) Debt permitted by Section 4.03(b)(x) any transactions made pursuant 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 with an unrelated Personany Operations Management Agreement.
Appears in 2 contracts
Sources: Indenture (McGraw-Hill Interamericana, Inc.), Indenture (McGraw-Hill Global Education LLC)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 (each Affiliate, officer or director of the foregoingCompany (each, an "“Affiliate Transaction"), ”) unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii) the Company delivers to the Trustee (a2) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration or series of related Affiliate Transactions with a fair market value in excess of $3.0 US$50.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above 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 involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingCompany.
(b) The provisions of Section 4.07(a) following items shall be deemed not prohibit (to constitute Affiliate Transactions and, the following therefore, shall not be deemed subject to be Affiliate Transactions):the provisions of paragraph (a) above:
(1) any employment agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or its the 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors a Person that is an Affiliate of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 solely because the Company and the Brevard lease agreement) or any amendment thereto (so long as any owns an Equity Interest in such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent Person, provided such Debt is transactions are on terms that, taken as a whole, 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 fees to Persons who are not otherwise Affiliates of the Company;
(5) sales of Equity Interests of the Company, other than Disqualified Stock or Back-to-Back Securities, to Affiliates of the Company;
(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 Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on October 8, 2003;
(7) transactions that are permitted by the provisions of Section 4.10 hereof;
(8) Permitted Investments;
(9) any Tax Benefit Transaction; and
(10) transactions effected as part of a Qualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $10.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 15.0 million, a resolution of the Board Resolution of Directors of the Company set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and of the Company; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 50.0 million, an opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.07(a4.11(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):hereof:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) employment agreementstransactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated therebydirectly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) any payments payment of reasonable and customary fees and reimbursements of expenses (pursuant to Investcorp and its Affiliates (whether indemnity arrangements or not such Persons are Affiliates otherwise) of the Company) (A) for any financial advisoryofficers, financingdirectors, underwriting employees or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors consultants of the Company in good faith and (B) or any of annual management, consulting and advisory fees and related expensesits Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07 hereof and Permitted Investments;
(7) any agreement as in effect as of the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to the Holders of Notes in any material respect than the terms of the agreements in effect on the Closing Date Issue Date;
(including 8) any agreement between any Person and an Affiliate of such Person existing at the Recapitalization Agreementtime such Person is acquired by, the Services Agreement (as amended on April 15merged into or amalgamated, 1998) between the Berkshire Companies Limited Partnership and arranged or consolidated with the Company or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation and the Brevard lease agreement) or any amendment thereto (so long as any such amendment is not more disadvantageous to the Holders of Notes in any material respectrespect than the applicable agreement as in effect on the date of such acquisition, merger, amalgamation, arrangement or consolidation);
(9) transactions between the Company or any payment of its Restricted Subsidiaries and any Person that is an Affiliate solely because one or other transaction contemplated by more of its directors is also a director of the Company or any of its Restricted Subsidiaries; provided that such director abstains from voting as a director of the foregoingCompany or such Restricted Subsidiary, as the case may be, on any matter involving such other Person; and
(610) Debt permitted by Section 4.03(b)(x) any transaction or series of related transactions for which the Company or any of its Restricted Subsidiaries delivers to the extent such Debt is on terms that, taken Trustee an opinion as a whole, are no less favorable to the fairness to the Company or the relevant applicable Restricted Subsidiary than those that would have of such transaction or series of related transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national recognized standing qualified to perform the task for which it has been obtained in a comparable transaction with an unrelated Personengaged.
Appears in 2 contracts
Sources: Indenture (Coeur Mining, Inc.), Indenture (Coeur D Alene Mines Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- Each of the Borrowers will not, and shall will not permit any of its Restricted respective Subsidiaries to, make any payment toenter into, or sellcause, lease, transfer suffer or otherwise dispose of permit to exist any arrangement or contract with any of its properties or assets to, or purchase their other Affiliates (other than 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 Obligor)
(each of the foregoing, an "Affiliate Transaction"), unless:
a) unless (i) such Affiliate Transaction arrangement or contract is on fair and equitable to WWI or such Subsidiary and is an arrangement or contract of the kind which would be entered into by a prudent Person in the position of the Borrowers or such Subsidiary with a Person which is not one of their Affiliates; (ii) if such arrangement or contract involves an amount in excess of $5,000,000, the terms that, taken of such arrangement or contract are set forth in writing and a majority of directors of WWI have determined in good faith that the criteria set forth in clause (i) are satisfied and have approved such arrangement or contract as a whole, are no less favorable to evidenced by appropriate resolutions of the Company board of directors of WWI or the relevant Restricted Subsidiary than those Subsidiary; or (iii) if such arrangement or contract involves an amount in excess of $25,000,000, the board of directors shall also have received a written opinion from an investment banking, accounting or appraisal firm of national prominence that would have been obtained in is not an Affiliate of WWI to the effect that such arrangement or contract is fair, from a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Personfinancial standpoint, to WWI and its Subsidiaries; and
(iib) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess except that, so long as no Default or Event of $3.0 millionDefault has occurred and is continuing or would be caused thereby, a Board Resolution certifying that such Affiliate Transaction complies with clause WWI and its Subsidiaries may pay (i) above annual management, consulting, monitoring and that such Affiliate Transaction has been approved by a majority advisory fees to The Invus Group, Ltd. in an aggregate total amount in any Fiscal Year not to exceed the greater of the members of the Board of Directors (x) $1,000,000 and (by) with respect 1.0% of EBITDA for the relevant period, and any related out-of-pocket expenses and (ii) fees to any Affiliate Transaction involving aggregate consideration in excess of $10.0 millionThe Invus Group, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions 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 contemplated thereby;
(4) any payments to Investcorp Ltd. and its Affiliates (whether in connection with any acquisition or not such Persons are divestiture transaction entered into by WWI or any Subsidiary; PROVIDED, HOWEVER, that the aggregate amount of fees paid to The Invus Group, Ltd. and its Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions any acquisition or divestitures, which payments are approved by the Board of Directors divestiture transaction shall not exceed 1% of the Company in good faith and (B) total amount of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Persontransaction.
Appears in 2 contracts
Sources: Credit Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not permit any of its Restricted Subsidiaries toto enter into, make renew or extend any payment totransaction (including, without limitations, the purchase, sale, lease or exchange of property or assets, or sell, lease, transfer the rendering of any service) with any Affiliate of the Company 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 Restricted Subsidiaries (each of the foregoingeach, an "“Affiliate Transaction"”), unless:
(i) such Affiliate Transaction is on except upon terms that, taken as a whole, are no less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been obtained could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such 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) hereof:
(1) transactions (A) approved by a majority of the disinterested members of the Board of Directors of the Company or (B) for which the Company or any Restricted Subsidiary delivers to the Trustee a written opinion of an independent qualified real estate appraisal firm or a nationally recognized investment banking, accounting or appraisal firm, stating that the transaction is fair to the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its Restricted Subsidiariesview;
(2) Permitted Investments any transaction solely among Holdings, CyrusOne GP, the Company and any of its Restricted Payments that are permitted by Section 4.04Subsidiaries or solely among Restricted Subsidiaries of the Company;
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all any payments and or other transactions contemplated therebypursuant to any tax-sharing agreement between the Company and Holdings;
(4) any payments Restricted Payments not prohibited by Section 4.07 hereof and Permitted Investments;
(5) transactions pursuant to Investcorp the Partnership Agreement or any other agreements or arrangements in effect on the Issue Date or any amendment, modification, or supplement thereto or replacement thereof, as long as, in the reasonable determination of the Board of Directors or the chief financial officer of the Company, such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially less favorable to the Company and the Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;
(6) director’s fees and any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or any of its Affiliates (whether Restricted Subsidiaries with officers, directors and employees of Holdings, CyrusOne GP, the Company or not such Persons its Restricted Subsidiaries that are Affiliates of the Company) Company or its Restricted Subsidiaries and the payment of compensation and the issuance of securities to such officers, directors and employees (A) for including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), or loans and advances to any financial advisoryofficer, financingdirector or employee, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are so long as such agreements have been approved by the Board of Directors of the Company;
(7) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of Holdings, CyrusOne GP, the Company or any of its Restricted Subsidiaries;
(8) sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates;
(9) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(10) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in good faith such joint venture, partnership, limited liability company or other entity; or
(11) any transaction effected as part of a Qualified Receivables Transaction. Notwithstanding the foregoing, any transaction or series of related transactions covered by Section 4.11(a) and not covered by (2) through (11) of this Section 4.11(b), the aggregate amount of which exceeds $10.0 million in value must be approved or determined to be fair in the manner provided for in clause (1)(A) or (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personabove.
Appears in 2 contracts
Sources: Indenture (CyrusOne Inc.), Indenture (CyrusOne Inc.)
Transactions with Affiliates. (a) The Company 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 (each of the foregoingeach, an "“Affiliate Transaction"”), unless:
: (ia) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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; and
and (iib) the Company delivers to the Trustee Trustee: (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above 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 (bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 15.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and. Notwithstanding the foregoing, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors fees;
(5) the issuance or sale of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(6) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; and
(7) Restricted Payments that are permitted by the provisions of Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course 4.07 of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personthis Indenture.
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 shall ---------------------------- not, and shall 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 (each consolidation of the foregoingBorrower and Holdings or any other direct parent company of the Borrower, an "Affiliate Transaction")provided that such parent company shall have no material liabilities and no material assets other than cash, unless:
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, (ib) such Affiliate Transaction is on terms that, taken substantially 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 by the Company 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 unrelated Person; and
Affiliate, (iic) 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 less favorable to Holdings 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 was not an Affiliate, (e) the Company delivers entering into of any agreement (and any amendment or modification of any such agreement) to pay, and the payment of, annual management, consulting, monitoring and advisory fees to the Trustee Investors in an aggregate amount in any fiscal year not to exceed the greater of (ax) $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 Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 millionRestricted Subsidiaries, a Board Resolution certifying that such Affiliate Transaction complies with clause (if) above Restricted Payments permitted under Section 7.06, (g) [reserved], (h) employment and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors severance arrangements between Holdings and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments Subsidiaries and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans their respective officers and related arrangements entered into 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 payments and other transactions 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 Closing Date) or any transaction contemplated thereby;
, (4k) payments by Holdings or any payments of its Restricted Subsidiaries to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to agreements with the Investors described in the offering memorandum related to the Senior Notes or (y) approved by a majority of the Board of Directors of the Company Borrower or Holdings or any other direct or indirect parent of the Borrower in good faith faith, (l) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 7.06(h)(ii), (Bm) the issuance of Equity Interests (other than Disqualified Equity Interests) of annual managementthe Borrower or Holdings to the Investors or to Holdings or any other direct or indirect parent of the Borrower or Holdings or to any director, consulting officer, employee or consultant thereof and advisory fees any contribution to the capital of Holdings, (n) (i) 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 Agreement, which are fair to Holdings and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or 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 ordinary course of business, (o) [reserved], (p) the existence of, or the performance by the Borrower or any Restricted Subsidiaries of its obligations under the terms of the Acquisition Agreement, any stockholders agreement (including any registration rights agreement or purchase agreement related expenses;
(5thereto) any agreement in effect on to which it is a party as of 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 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 amendment is not disadvantageous to existing agreement or under any similar agreement entered into after the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt Closing Date shall only be permitted by Section 4.03(b)(xthis clause (p) to the extent that the terms of any such Debt is on terms thatexisting agreement together with all amendments thereto, taken as a whole, or new agreement are no less favorable not otherwise more disadvantageous to the Company Lenders in any material respect than the original agreement as in effect on the Closing Date, (q) transactions between the Borrower or any Restricted Subsidiaries and any Person that is an Affiliate solely due to the relevant Restricted Subsidiary than those fact that would have been obtained in a comparable transaction with an unrelated Persondirector of such Person is also a director of the Borrower or Holdings or any other direct or indirect parent of the Borrower; provided, however, that such director abstains from voting as a director of the Borrower or such direct or indirect parent of the Borrower, as the case may be, on any matter involving such other Person and (r) pledges of Equity Interests of Unrestricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Delta Tucker Holdings, Inc.), Credit Agreement (Phoenix Consulting Group, LLC)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not cause or 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 its Affiliates (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate payment or consideration in excess of $25.0 million, unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary 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 or such Restricted Subsidiary with an unrelated Person; Company, and
(ii2) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $3.0 80.0 million, a Board Resolution adopted by the majority of the members of the Board of 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’ certificate certifying that such Affiliate Transaction complies with clause (i1) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingthis Section 4.11(a).
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company’s Board of Directors or a committee thereof;
(2) transactions between or among the Company and/or and any of its Restricted Subsidiaries or between or among such Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments ; provided that such transactions are permitted not otherwise prohibited by Section 4.04this Indenture;
(3) employment agreements, employee benefit plans and related arrangements entered into any agreement as in effect as of the ordinary course 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 than the original agreement as in effect on the Issue Date as determined in good faith by the Company’s Board of business and all payments and other transactions contemplated therebyDirectors;
(4) any Restricted Payments or Permitted Investments permitted by this Indenture;
(5) transactions effected as part of a Qualified Securitization Transaction;
(6) payments or loans to Investcorp and its Affiliates (whether employees or not such Persons are Affiliates of the Company) (A) 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 consultants that are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(57) sales of Qualified Capital Stock;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders’ agreement in effect on the Closing Date (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Recapitalization AgreementIssue Date and any similar agreements which it may enter into thereafter; provided, however, that the Services Agreement (as amended on April 15existence of, 1998) between or the Berkshire Companies Limited Partnership and performance by the Company and the Brevard lease agreement) or any of its Restricted Subsidiaries of obligations under, any future amendment thereto to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (so long as 8) to the extent that the terms of any such amendment is or new agreement are not disadvantageous to the Holders in any material respect;
(9) transactions permitted by, and complying with, the provisions of Section 5.01 hereof;
(10) any issuance of securities or other payments, awards, grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors of the Company or a committee thereof in good faith;
(11) investments by the Permitted Holders in securities of the Company or any payment of its Restricted Subsidiaries so long as (i) the investment is being offered generally to other investors on the same or other transaction contemplated by any more favorable terms and (ii) the investment constitutes less than 5.0% of the foregoingproposed or outstanding issue amount of such class of securities; and
(612) Debt permitted by Section 4.03(b)(x) to transactions in which the extent Company or any Restricted Subsidiary, as the case may be, receives an opinion from a nationally recognized investment banking, appraisal or accounting firm that such Debt Affiliate Transaction is on terms thateither fair, taken as from a wholefinancial standpoint, are no less favorable to the Company or the relevant such Restricted Subsidiary or is on terms not materially less favorable than those that would might reasonably have been obtained in a comparable transaction with at such time on an unrelated Personarm’s length basis from a Person that is not an Affiliate of the Company.
Appears in 2 contracts
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 Guarantee with, or for the benefit of, any Affiliate (each Affiliate, officer or director of the foregoingCompany (each, an "“Affiliate Transaction"), ”) unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii2) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 US$75.0 million, :
(i) a Board Resolution certifying of the Company set forth in an Officers’ Certificate stating that such Affiliate Transaction complies with clause (i) above 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 of the Company; or
(bii) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an investment bankingindependent accounting, appraisal or accounting investment banking firm of national standingstanding in the United States or Canada.
(b) The provisions of Section 4.07(a) following items shall be deemed not prohibit (to constitute Affiliate Transactions and, the following therefore, shall not be deemed subject to be Affiliate Transactions):the provisions of paragraph (a) above:
(1) payments pursuant to any employment agreement, collective bargaining agreement, employee benefit plan or other compensation, indemnity, incentive or similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, which represent customary and reasonable consideration (as determined in good faith by the Board of Directors of the Company);
(2) transactions between or among the Company and/or its the 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors a Person that is an Affiliate of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 solely because the Company and the Brevard lease agreement) or any amendment thereto (so long as any owns an Equity Interest in such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent Person, provided such Debt is transactions are on terms that, taken as a whole, 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 fees to Persons who are not otherwise Affiliates of the Company;
(5) sales of Equity Interests of the Company, other than Disqualified Stock or Back-to-Back Securities, to Affiliates of the Company;
(6) any agreement or arrangement as in effect on the Issue Date 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 Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on the Issue Date;
(7) Restricted Payments that are permitted by the provisions of Section 4.10 hereof;
(8) Permitted Investments;
(9) Transactions effected as part of a Qualified Receivables Transaction; and
(10) any Tax Benefit Transaction.
Appears in 2 contracts
Sources: Indenture (Quebecor Media Inc), Indenture (Quebecor Media Inc)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $15.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 35.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer or any Parent of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) (A) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or, for the avoidance of doubt, an entity that becomes a Restricted Subsidiary as a result of such transaction) and (B) any merger, consolidation or amalgamation of the Issuer and any direct parent company of the Issuer; 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 Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and (a) Restricted Payments that are permitted by Section 4.044.04 and (b) Investments under the definition of “Permitted Investments”;
(3iii) employment agreementsthe entering into of any agreement to pay, employee benefit plans and related arrangements entered into the payment of, management, consulting, monitoring and advisory fees and expenses to the Sponsors in an aggregate amount in any fiscal year not to exceed the ordinary course greater of business (x) $12.5 million and all payments (y) 1.25% of Adjusted EBITDA of the Issuer and other transactions contemplated therebyits Restricted Subsidiaries for the immediately preceding fiscal year;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursements of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary of the Issuer or any Parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) approved by a majority of the Board of Directors of the Company Issuer in good faith or (y) made pursuant to any agreement described under (i) Item 13 “Certain Relationships and Related Transactions and Director Independence” in Intelsat Investments S.A.’s Annual Reports on Form 10-K for each of the four years ended December 31, 2012, (Bii) “Certain Relationships and Related Party Transactions” in Intelsat S.A.’s Registration Statement on Form F-1, as amended (Registration No. 333-181527), initially filed with the SEC on May 18, 2012, or (iii) “Item 7B–Related Party Transactions” in Intelsat S.A.’s Annual Reports on Form 20-F for each of annual managementthe three years ended December 31, consulting and advisory fees and related expenses2015, in each case, as such documents may be amended;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants that are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders in any material respectrespect than the original agreement as in effect on the Issue Date) or any payment or other transaction contemplated thereby;
(ix) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the foregoingterms of, the Transaction Documents and any amendment thereto or similar agreements which it may enter into thereafter; and
(6) Debt 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 Issue Date shall only be permitted by Section 4.03(b)(xthis clause (ix) to the extent that the terms of any such Debt is on terms thatexisting agreement together with all amendments thereto, taken as a whole, or new agreement are no less favorable not otherwise more disadvantageous to the Company Holders in any material respect than the original agreement as in effect on the Issue Date;
(x) transactions to effect the Transactions and the payment of all fees and expenses related to the Transactions;
(xi) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the relevant 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, which are fair to the Issuer and its Restricted Subsidiary than those that would Subsidiaries, in the reasonable judgment of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (B) transactions with Joint Ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a comparable Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xiv) 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 the Issuer or any Parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by clause (xii) of Section 4.04(b) and the performance of any such agreement or arrangement;
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, the provisions of Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any Parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such Parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business; and
(xxi) any transaction pursuant to or in connection with an unrelated Personthe Specified Intercompany Agreements.
Appears in 2 contracts
Sources: Indenture (Intelsat S.A.), Indenture (Intelsat S.A.)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 permit to exist any transaction or amend series of related transactions (including the purchase, sale, lease or exchange of any transactionproperty, contract, agreement, understanding, loan, advance employee compensation arrangements or guarantee with, or for the benefit of, rendering of any service) with any Affiliate (each of the foregoing, Company (an "Affiliate Transaction"), unless:
) unless the terms thereof (i) such Affiliate Transaction is on terms that, taken as a whole, are no less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been could be obtained at the time of such transaction in arm's-length dealings with a comparable transaction by the Company or Person who is not such Restricted Subsidiary with an unrelated PersonAffiliate; and
and (ii) the Company delivers to the Trustee (a) with respect to any if such Affiliate Transaction entered into after the first Issue Date involving (or series of related Affiliate Transactions) involve aggregate consideration payments in an amount in excess of $3.0 million10 million in any one year, a Board Resolution certifying that such Affiliate Transaction complies with clause (iA) above are set forth in writing and that such Affiliate Transaction has (B) have been approved by a majority of the disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingDirectors.
(b) The provisions of Section 4.07(a) the foregoing paragraph shall not prohibit (and, the following shall not be deemed i) any Restricted Payment permitted to be Affiliate Transactions):
paid pursuant to the covenant described under Section 6.04 herein; (1ii) transactions between any issuance of securities, or among other payments, awards or grants in cash, securities or otherwise, pursuant to, or the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments funding of, employment arrangements, stock options and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit stock ownership plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors or a committee thereof; (iii) the grant of stock options or similar rights to employees and directors of the Company in good faith the ordinary course of business and pursuant to plans approved by the Board of Directors or a committee thereof; (Biv) loans or advances to employees in the ordinary course of annual managementbusiness of the Company or its Restricted Subsidiaries; (v) fees, consulting compensation or employee benefit arrangements paid to and advisory fees and related expenses;
indemnity provided for the benefit of directors, officers or employees of the Company or any Subsidiary in the ordinary course of business; or (5vi) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) Affiliate Transaction 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 foregoing; and
(6) 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 with an unrelated Personor between Restricted Subsidiaries.
Appears in 2 contracts
Sources: First Supplemental Indenture (Standard Pacific Corp /De/), Fourth Supplemental Indenture (Standard Pacific Corp /De/)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $2.0 million, unless:
(i1) such the Affiliate Transaction is on terms thatthat are not materially less favorable to the Company, 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 by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a2) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that 20.0 million the terms of such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has transaction have been approved by a majority of the members of the Board of Directors and (b) with respect to any of the Company. Any Affiliate Transaction involving aggregate consideration shall be deemed to have satisfied the requirements set forth in excess clause (2) of $10.0 million, an opinion as to the fairness to the Holders of this Section 4.11(a) if such Affiliate Transaction from is approved by a financial point majority of view issued by an investment bankingthe Disinterested Directors of the Company, appraisal or accounting firm of national standingif any.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, consulting agreement, severance agreement, employee benefit and pension plan, compensation arrangement, officer or director indemnification agreement or any similar arrangement entered into by, or policy of, the Company or any of its Restricted Subsidiaries and payments pursuant thereto;
(2) (a) transactions between or among the Company and/or its Restricted Subsidiaries;
Subsidiaries (2or entity that becomes a Restricted Subsidiary as a result of such transaction) Permitted Investments and Restricted Payments (b) any merger, amalgamation or consolidation with any direct or indirect parent entity, provided that are such parent entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise permitted by Section 4.04under this Indenture;
(3) employment agreementstransactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary, any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an Equity Interest in, or controls, such Person;
(4) payment of fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent company of the Company to Affiliates of the Company;
(6) (a) Restricted Payments or other transactions that do not violate Section 4.07 hereof and (b) Permitted Investments;
(7) sales of Equity Interests of the Company or any direct or indirect parent of the Company to Affiliates of the Company or its Restricted Subsidiaries not otherwise prohibited by this Indenture and the granting of registration, investor and other customary rights in connection therewith and the payment of fees, costs and expenses related;
(8) transactions with an Affiliate where the only consideration paid is Qualifying Equity Interests of the Company;
(9) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction (i) is fair to 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, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Company and its Restricted Subsidiaries and Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any future, current or former employee, director, officer, manager, contractor, consultant or advisor of the Company, any of its Subsidiaries or any of its direct or indirect parent entities pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans and related or arrangements thereto), employment, termination or severance agreement or any stock subscription or equityholder agreement with any such employee, director, officer, manager, contractor, consultant or advisor that are, in each case, approved by the Company in good faith;
(11) any agreement as in effect as of the Issue Date or any amendment thereto or extension, renewal or refinancing thereof (so long as any such agreement together with all amendments thereto or extension, renewal or refinancing thereof, taken as a whole, is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby;
(12) transactions with joint ventures or any Subsidiary entered into in the ordinary course of business and all payments and other transactions contemplated therebyor consistent with past practice (including any cash management arrangements or activities related thereto);
(413) any payments contributions to Investcorp and its Affiliates (whether or not such Persons are Affiliates the common equity capital of the Company;
(14) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to Section 4.17 hereof and pledges of Equity Interests of Unrestricted Subsidiaries;
(A15) for any financial advisorythe issuances of Capital Stock, financingoptions, underwriting other equity-related interests, securities or placement services other payments, awards or grants in respect of other investment banking activitiescash, including in connection with acquisitions securities or divestituresotherwise pursuant to, which payments are or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company, any direct or indirect parent of the Company, or of a Restricted Subsidiary of the Company, as appropriate, in good faith;
(16) the entry into any tax-sharing or receivable arrangements or other equity agreements in respect of Related Taxes between the Company or any of its Restricted Subsidiaries and any of their direct or indirect parents; provided, however, that any payment made by the Company or any of its Restricted Subsidiaries under such tax- sharing or receivable arrangements or other equity agreements in respect of Related Taxes is, at the time made, otherwise permitted by Section 4.07 hereof;
(17) transactions with customers, vendors, clients, lessors, landlords, suppliers, contractors, distributors or purchasers or sellers of good 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 the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company;
(18) transactions between the Company and any of the Company’s Restricted Subsidiaries and any Person a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that such director abstains from voting as a director of the Company;
(19) any transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or Capital Stock in any Restricted Subsidiary permitted under Section 4.10 hereof or entered into with any Permitted Business, in each case, that the Company determines in good faith and (B) is either fair to the Company or otherwise on customary terms for such type of annual management, consulting and advisory fees and related expensesarrangements in connection with similar transactions;
(520) (i) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) lease entered into between the Berkshire Companies Limited Partnership Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor and (ii) any operational services arrangement entered into between the Company and the Brevard lease agreement) or any amendment thereto (so long as Restricted Subsidiary and any such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any Affiliate of the foregoingCompany, in each case, which is approved by the reasonable determination of the Company; and
(621) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatPermitted Intercompany Activities, taken as a wholePermitted Tax Restructurings, are no less favorable to Intercompany License Agreements and related transactions. In addition, if the Company or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the relevant purchase or acquisition by an Affiliate of the Company of an interest in all or a portion of the assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or acquisition by the Company or a Restricted Subsidiary than those that would have been obtained to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Company of an interest in all or a comparable transaction with portion of the assets or properties sold shall not be deemed an unrelated PersonAffiliate Transaction (or cause such sale or other disposition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction).
Appears in 2 contracts
Sources: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 of its Affiliates (each of the foregoingeach, an "Affiliate Transaction"), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and having no personal stake in such Affiliate Transaction; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 15.0 million, an opinion as to the fairness to the Holders Company and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall transactions will not be deemed to be Affiliate TransactionsTransactions and therefore will not be subject to the provisions of Section 4.11(a):
(1) transactions between or among the Company and/or its any Restricted SubsidiariesPayment permitted to be made pursuant to Section 4.07 and any Permitted Investment;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04payments made pursuant to the CPIH Reimbursement Agreement, the Corporate Services Reimbursement Agreement or the Tax Sharing Agreement;
(3) employment agreementsany employment, employee benefit plans and related arrangements service or termination agreement entered into in the ordinary course of business and all payments and other transactions contemplated therebybusiness;
(4) any payments to Investcorp issuance of Equity Interests (other than Disqualified Stock), or other payments, awards or grants in cash, Equity Interests (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment arrangements, employee stock options and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 employee stock ownership plans approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesDirectors;
(5) any agreement in 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 loans or advances to employees of the Company and or its Subsidiaries in the Brevard lease agreementordinary course of business permitted by clause (7) 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 foregoing; anddefinition of Permitted Investments;
(6) Debt permitted by Section 4.03(b)(xthe payment or provision of reasonable fees, compensation or employee benefit plans, arrangements or perquisites to, and any indemnity provided for the benefit of, directors, officers, consultants or employees of the Company or any Subsidiary in the ordinary course of business;
(7) any transaction between or among the Company and its Restricted Subsidiaries or between Restricted Subsidiaries of the Company;
(8) 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 extent Company and its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors;
(9) transactions with the Investor Parties pursuant to the Indemnification Agreement, the Second Lien Letter of Credit Facility and any other agreement in existence on the Issue Date, between the Company, DHC or any Investor Party, as such Debt is agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms thatnot materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, are no than those terms in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement;
(10) transactions with CPIH and its Subsidiaries pursuant to agreements in existence or entered into on the Issue Date, as such agreements may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreements as in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement;
(11) transactions pursuant to any other arrangement, contract or agreement in existence on the relevant Issue Date, as such arrangement, contract or agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced from time to time; provided that any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement is on terms not materially less favorable to the Company and its Restricted Subsidiary Subsidiaries, taken as a whole, than those that would have been obtained the arrangement, contract or agreement in a comparable transaction with an unrelated Personexistence on the Issue Date; and
(12) sales of Equity Interests, other than Disqualified Stock, of the Company to Affiliates of the Company.
Appears in 2 contracts
Sources: Indenture (Covanta Energy Corp), Indenture (Covanta Energy Corp)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and shall not permit any of its the 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 50 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company Issuer and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and indemnity provided on behalf of, officers, directors, employees or consultants of the Issuer, any Restricted Subsidiary, or any direct or indirect parent of the Issuer;
(iv) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, obtains 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 clause (i) of Section 4.07(a) and delivers a copy of such letter to the Trustee;
(v) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(vi) 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 Notes in any material respect than the original agreement as in effect on the Issue Date, as determined in good faith by the Issuer) or any transaction contemplated thereby;
(vii) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders or other agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date, and any transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 Issuer or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (vii) 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 holders of the Notes in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date or described in the Offering Memorandum, as determined in good faith by the Issuer;
(viii) the execution of the Transactions, and the payment of all fees, expenses, bonuses and awards related to the Transactions, including fees to the Co-Investors;
(ix) (A) transactions with 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 or consistent with past practice or industry norm 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 or the senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and all payments and other transactions contemplated therebyor consistent with past practice or industry norm;
(4x) any payments transaction pursuant to Investcorp and its Affiliates any Permitted Securitization Financing;
(whether or not such Persons are Affiliates xi) the issuance of Equity Interests (other than Disqualified Stock) of the CompanyIssuer to any Person;
(xii) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary, as appropriate, in good faith;
(xiii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii) and the performance under any such agreement or arrangement;
(xiv) any contribution to the capital of the Issuer;
(xv) transactions permitted by, and complying with, Section 5.01;
(xvi) transactions between the Issuer or any Restricted Subsidiary and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xix) any employment agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(a) the entering into of any agreement (and any amendment or modification of any such agreement so long as, in the good faith judgment of the Board of Directors of the Issuer, any such amendment or modification is not more disadvantageous, taken as a whole, to holders in any material respect as compared to the agreement as in effect on the Issue Date) to pay, and the payment of, monitoring, consulting, management, transaction, advisory or similar fees payable to the Co-Investors (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of $10 million and 2.0% of Pro Forma EBITDA of the Issuer for the most recently ended four full fiscal quarters for which financial statements have been delivered to the Trustee, plus reasonable out-of-pocket costs and expenses in connection therewith and unpaid amounts accrued for prior periods; plus (2) any deferred fees (to the extent such fees were within such amount in clause (1) above originally) plus (B) in an amount not to exceed 1% of transaction value with respect to any transaction in which any Co-Investor provides any transaction, advisory or other services, and (b) the payment of the present value of all amounts payable pursuant to any agreement described in clause(xx)(a) in connection with the termination of such agreement;
(xxi) payments by the Issuer or any of its Restricted Subsidiaries to any of the Co-Investors 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 approved by a majority of the Board of Directors of the Company Issuer in good faith;
(xxii) transactions undertaken in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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) certified by a responsible financial 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 accounting officer of the foregoingIssuer in an Officer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
(6xxiii) Debt permitted investments by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to Co-Investors in securities of the Company Issuer or the relevant any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by the Co-Investors in connection therewith) so long as (i) the investment is being generally offered to other investors on the same or more favorable terms and (ii) the investment constitutes less than those 5% of the proposed or outstanding issue amount of such class of securities.
(c) Notwithstanding Section 4.07(a), the Co-Investors and any portfolio company that would have been obtained is an Affiliate of the Co-Investors shall not be considered an Affiliate of the Issuer or its Subsidiaries with respect to any transaction, so long as such transaction is in a comparable transaction with an unrelated Personthe ordinary course of business.
Appears in 2 contracts
Sources: Indenture (Rackspace Technology, Inc.), Indenture (Rackspace Technology, Inc.)
Transactions with Affiliates. (a) The Company MPM shall ---------------------------- not, and shall not permit any of its the 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 MPM (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $7.5 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company MPM or the relevant Restricted Subsidiary than those that would could reasonably have been obtained in a comparable transaction by the Company MPM or such Restricted Subsidiary with an unrelated unaffiliated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 25.0 million, MPM deliver to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of MPM approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among MPM and/or any of the Company and/or its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of MPM and any direct parent of MPM; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of MPM and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby[Reserved];
(4iv) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of MPM or any payments to Investcorp and its Affiliates Restricted Subsidiary or any direct or indirect parent of MPM;
(whether v) [Reserved];
(vi) transactions in which MPM or not such Persons are Affiliates any of the CompanyRestricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to MPM or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(Avii) for any financial advisorypayments or loans (or cancellation of loans) to directors, financingofficers, underwriting employees or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments consultants that are approved by a majority of the Board of Directors of the Company MPM in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5viii) the existence of, or the performance by MPM or any of its Restricted Subsidiaries under the terms of, any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by senior management or the relevant Board of Directors of MPM;
(ix) the existence of, or the performance by MPM or any of the Restricted Subsidiary Subsidiaries of their obligations under the terms of, any stockholders agreement or investors rights agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date, and any agreement described in MPM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 (including the documents incorporated therein by reference), and, in each case, any amendment thereto or similar agreements that it may enter into thereafter; provided, however, that the existence of, or the performance by MPM or any of the Restricted Subsidiaries of their 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 (ix) to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or any such new agreement are not otherwise more disadvantageous to the Holders of the Notes in any material respect than those that would the original agreement as in effect on the Issue Date;
(x) the execution of the Transactions and the payment of all fees and expenses related to the Transactions;
(xi) (A) transactions with customers, clients, suppliers, toll manufacturers 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 MPM and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of MPM, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a comparable transaction with Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of MPM to any Person;
(xiv) 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 MPM or any direct or indirect parent of MPM or of a Restricted Subsidiary, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 4.04(b)(xii);
(xvi) any contribution to the capital of MPM;
(xvii) transactions permitted by, and complying with, Section 5.01;
(xviii) transactions between MPM or any of the Restricted Subsidiaries and any Person, a director of which is also a director of MPM or any direct or indirect parent of MPM; provided, however, that such director abstains from voting as a director of MPM or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by MPM or any of the Restricted Subsidiaries in the ordinary course of business; and
(xxi) intercompany transactions undertaken in good faith (as certified by a responsible financial or accounting officer of MPM in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of MPM and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture.
Appears in 2 contracts
Sources: Indenture (Momentive Performance Materials Quartz, Inc.), Indenture (Momentive Performance Materials Quartz, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- Borrower will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, on any date before the Parent Guarantee Date, directly or indirectly, pay any 44 49 funds to or for the account of, make any payment toinvestment (whether by acquisition of stock or indebtedness, by loan, advance, transfer of property, guarantee or other agreement to pay, purchase or service, directly or indirectly, any Debt, or sellotherwise) in, lease, sell, transfer or otherwise dispose of any of its properties assets, tangible or assets intangible, to, or purchase any property or assets fromparticipate in, or enter into effect any transaction in connection with any joint enterprise or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee other joint arrangement with, or for the benefit of, any Affiliate (each of the foregoingcollectively, an "Affiliate TransactionAFFILIATE TRANSACTIONS"); provided, unless:
(i) such Affiliate Transaction is on terms thathowever, taken as a whole, are no less favorable to that the Company foregoing provisions of this Section 5.14 shall not prohibit the Borrower 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; and
(ii) the Company delivers to the Trustee any of its Subsidiaries from: (a) with respect to any Affiliate Transaction entered into after making Restricted Payments (including, for this purpose, transactions expressly excluded from the first Issue Date involving aggregate consideration in excess definition of $3.0 milliona Restricted Payment) permitted by Section 5.10, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect making sales to or purchases from any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between in connection therewith, extending credit or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that making payments, or from making payments for services rendered by any Affiliate, if such sales or purchases are permitted by Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into made or such services are rendered in the ordinary course of business and all on terms and conditions at least as favorable to the Borrower or such Subsidiary as the terms and conditions which the Borrower would reasonably expect to be obtained in a similar transaction with a Person which is not an Affiliate at such time, (c) making payments of principal, interest and other transactions contemplated thereby;
(4) premium on any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates Debt of the CompanyBorrower or such Subsidiary held by an Affiliate if the terms of such Debt are at least as favorable to the Borrower or such Subsidiary as the terms which the Borrower would reasonably expect to have been obtained at the time of the creation of such Debt from a lender which was not an Affiliate, (d) (A) for participating in, or effecting any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including transaction in connection with, any joint enterprise or other joint arrangement with acquisitions any Affiliate if the Borrower or divestituressuch Subsidiary participates in the ordinary course of its business and on a basis no less advantageous than the basis on which such Affiliate participates, which payments are approved by the Board of Directors (e) paying or granting reasonable compensation and benefits to any director, officer, employee or agent of the Company Borrower or any Subsidiary, (f) paying reasonable legal fees and expenses to a law firm of which an Affiliate is a member or (g) engaging in good faith and any Affiliate Transaction not otherwise addressed in subsections (Ba) - (f) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Agreementthis Section 5.14, 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 terms of which are not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) 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 Borrower or the relevant Restricted such Subsidiary than those that the Borrower would have been reasonably expect to be obtained in a comparable transaction at such time with a Person which is not an unrelated PersonAffiliate.
Appears in 2 contracts
Sources: Credit Agreement (Tyco International LTD), 364 Day Credit Agreement (Tyco International LTD)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $20.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 50.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a3.8(a) shall will not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) (a) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and (b) any merger or consolidation of the Issuer and Holdings or any other direct parent of the Issuer, 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 Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2a) Restricted Payments permitted by this Indenture and (b) Permitted Investments and Restricted Payments that are permitted by Section 4.04Investments;
(3iii) any employment agreements, employee benefit plans and related arrangements agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business and all the payment of reasonable and customary fees and reimbursements paid to, and indemnity and similar arrangements provided on behalf of, officers, directors, employees or consultants of the Issuer or any Restricted Subsidiary or Holdings or (to the extent relating to the business of the Issuer and its Subsidiaries) any other direct or indirect parent of the Issuer;
(iv) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (a) of the preceding paragraph;
(v) payments and or loans (or cancellation of loans, advances or guarantees) or advances to employees or consultants or guarantees in respect thereof for bona fide business purposes in the ordinary course of business;
(vi) any agreement as in effect as of the Issue Date (other transactions than the Management Agreement) or as thereafter amended, supplemented or replaced (so long as such amended, supplemented or replaced agreement is not more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby;
(4vii) the Management Agreement as in effect as of the Issue Date or as thereafter amended, supplemented or replaced (so long as such amended, supplemented or replaced agreement is not more disadvantageous to the Holders of the Notes in any material respect than the Management Agreement as in effect on the Issue Date) or any transaction or payments (including reimbursement of out-of-pocket expenses) contemplated thereby;
(viii) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, the Merger Agreement, any stockholders or similar agreement to which it is a party as of the Issue Date and any amendment thereto or similar transactions, arrangements or agreements that it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under, any future amendment to any such existing transaction, arrangement or agreement or under any similar transaction, arrangement or agreement entered into after the Issue Date shall only be permitted by this clause (viii) to the extent that the terms of any such existing transaction, arrangement or agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the Holders of the Notes in any material respect than the original transaction, arrangement or agreement as in effect on the Issue Date;
(a) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, 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 Unrestricted Subsidiaries in the ordinary course of business;
(x) any transaction effected as part of a Qualified Receivables Financing;
(xi) the sale or issuance of Equity Interests (other than Disqualified Stock) of the Issuer;
(xii) payments by the Issuer or any of its Restricted Subsidiaries to Investcorp and the Sponsor or any of its Affiliates (whether or not such Persons are Affiliates of the Company) (A) made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to agreements with the Sponsor described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Issuer in good faith;
(xiii) any contribution to the capital of the Issuer (other than Disqualified Stock);
(xiv) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest or otherwise participate in such Person;
(xv) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or Holdings or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person;
(xvi) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 3.4(b)(xii);
(xvii) transactions to effect the Transactions and the payment of all transaction, underwriting, commitment and other fees and expenses related to the Transactions;
(xviii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xix) 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 the Company Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5xx) any agreement in effect on employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Closing Date Issuer or any of its Restricted Subsidiaries with current, former or future officers and employees of the Issuer, Holdings or any of their respective Restricted Subsidiaries and the payment of compensation to officers and employees of the Issuer, Holdings or any of their respective Restricted Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the Recapitalization Agreement, ordinary course of business;
(xxi) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreement) Issuer or any amendment thereto (of its Subsidiaries, so long as any such amendment transaction is not disadvantageous to 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;
(xxii) the Holders in any material respect) existence of, or the performance by the Issuer or any payment of its Restricted Subsidiaries of their obligations under the terms of, any customary registration rights agreement to which they are a party or other transaction contemplated by any of become a party in the foregoingfuture; and
(6xxiii) Debt permitted investments by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to Sponsor in securities of the Company Issuer or the relevant any Restricted Subsidiary than those that would have been obtained (and payment of reasonable out-of-pocket expenses incurred by the Sponsor in a comparable transaction with an unrelated Personconnection therewith).
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Transactions with Affiliates. (a) The Company 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 their 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 $10,000,000, unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially 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 PersonPerson on an arm’s-length basis; and
(ii2) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $3.0 million20,000,000, a resolution adopted by the majority of the Board Resolution of Directors approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i1) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingthis Section 4.11(a).
(b) The provisions of Section 4.07(a4.11 (a) hereof shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1) (A) transactions between or among the Company and/or or any of its Restricted Subsidiaries, and (B) any Affiliate Transaction, directly or indirectly, (i) constituting the payment of dividends or making any other distributions to CCU or any of its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of the Existing Senior Notes Indentures) or payment of any Indebtedness owed to CCU or any of its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of the Existing Senior Notes Indentures), (ii) making loans or advances to CCU or any of its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of the Senior Notes Indentures), or (iii) selling, leasing or transferring any properties or assets to CCU or any of its Restricted Subsidiaries (as defined in the indenture described in clause (b) of the definition of the Existing Senior Notes Indentures);
(2) Restricted Payments permitted by Section 4.07 of the 2017 B Indenture and Investments constituting Permitted Investments (as defined in the 2017 B Indenture);
(3) for so long as the Company is a member of a group filing a consolidated, combined, unitary, or similar group tax return with any direct or indirect parent company of the Company (regardless of whether the Company is a Wholly-Owned Subsidiary of such parent company), payments in respect of the hypothetical consolidated, combined, unitary, or similar group tax liabilities of the Company and its Subsidiaries, determined as if the Company were the common parent of a group of a separate affiliated group of corporations filing a consolidated federal income tax return (or the common parent of the applicable comparable group filing a consolidated, combined, unitary, or similar group tax return under state, local, or foreign law);
(4) the payment of reasonable and customary fees and compensation consistent with past practice or industry practices paid to, and indemnities provided on behalf of, employees, officers, directors or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(25) Permitted Investments and transactions in which the Company or any of its Restricted Payments Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are permitted not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Section 4.04the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(36) employment agreementsany agreement and the transactions contemplated thereby with an affiliate as in effect as of the Issue Date, employee benefit plans and any extension, amendment, restatement, modification or other supplement to, or replacement of, any of the foregoing and so long as any such extension, amendment, restatement, modification or other supplement is not materially adverse in the good faith judgment of the Board of Directors to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement, principal investors agreement (including any registration rights agreement or purchase agreement related arrangements thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise materially adverse in the good faith judgment of the Board of Directors to the Holders when taken as a whole;
(8) the Transactions and the payment of all fees and expenses related to the Transactions, including Transaction Expenses;
(9) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and all payments otherwise in compliance with the terms of this Indenture which are fair to the Company and other transactions contemplated therebyits Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management thereof, or are on terms at least as favorable as would reasonably have been obtained at such time from an unaffiliated party;
(410) any payments to Investcorp the issuance of Equity Interests (other than Disqualified Stock) by the Company or a Restricted Subsidiary;
(11) agreements and transactions between the Company and its Affiliates Restricted Subsidiaries, on the one hand, and CCU or any of its Restricted Subsidiaries (whether or not such Persons are Affiliates as defined in the indenture described in clause (b) of the Companydefinition of the Existing Senior Notes Indentures), on the other hand;
(12) (A) 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 in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesor as otherwise permitted by this Indenture;
(513) payments or loans (or cancellation of loans) to employees or consultants of the Company, any agreement in 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) of its direct or indirect parent companies or any amendment thereto (so long as any of its Restricted Subsidiaries and employment agreements, severance arrangements, stock option plans and other similar arrangements with such amendment is not disadvantageous to the Holders employees or consultants which, in any material respect) or any payment or other transaction contemplated each case, are approved by any a majority of the foregoingBoard of Directors in good faith; and
(6a) Debt permitted Investments by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to Investors in debt securities of the Company or any of its Restricted Subsidiaries and any payments in respect thereof so long as (i) the relevant Restricted Subsidiary investment is being offered generally to other investors on the same or more favorable terms and (ii) the investment constitutes less than those that would have been obtained 5.0% of the proposed or outstanding issue amount of such class of securities, and (b) payments in a comparable transaction with an unrelated Personrespect of any Public Debt or Notes held by Affiliates.
Appears in 2 contracts
Sources: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Communications Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 permit to exist any transaction or amend series of related transactions (including the purchase, sale, lease or exchange of any transactionproperty, contract, agreement, understanding, loan, advance employee compensation arrangements or guarantee with, or for the benefit of, rendering of any service) with any Affiliate (each of the foregoing, Company (an "“Affiliate Transaction"), unless:
”) unless the terms thereof (i) such Affiliate Transaction is on terms that, taken as a whole, are no less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been could be obtained at the time of such transaction in arm’s-length dealings with a comparable transaction by the Company or Person who is not such Restricted Subsidiary with an unrelated PersonAffiliate; and
and (ii) the Company delivers to the Trustee (a) with respect to any if such Affiliate Transaction entered into after the first Issue Date involving (or series of related Affiliate Transactions) involve aggregate consideration payments in an amount in excess of $3.0 million10 million in any one year, a Board Resolution certifying that such Affiliate Transaction complies with clause (iA) above are set forth in writing and that such Affiliate Transaction has (B) have been approved by a majority of the disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingDirectors.
(b) The provisions of Section 4.07(a) the foregoing paragraph shall not prohibit (and, the following shall not be deemed i) any Restricted Payment permitted to be Affiliate Transactions):
paid pursuant to the covenant described under Section 6.04 hereof; (1ii) transactions between any issuance of securities, or among other payments, awards or grants in cash, securities or otherwise, pursuant to, or the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments funding of, employment arrangements, stock options and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit stock ownership plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors or a committee thereof; (iii) the grant of stock options or similar rights to employees and directors of the Company in good faith the ordinary course of business and pursuant to plans approved by the Board of Directors or a committee thereof; (Biv) loans or advances to employees in the ordinary course of annual managementbusiness of the Company or its Restricted Subsidiaries; (v) fees, consulting compensation or employee benefit arrangements paid to and advisory fees and related expenses;
indemnity provided for the benefit of directors, officers or employees of the Company or any Subsidiary in the ordinary course of business; or (5vi) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) Affiliate Transaction 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 foregoing; and
(6) 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 with an unrelated Personor between Restricted Subsidiaries.
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (Standard Pacific Corp /De/), Supplemental Indenture (Standard Pacific Corp /De/)
Transactions with Affiliates. (a) The Company Lessee 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 Affiliate, including any Non-Recourse Subsidiary (each of the foregoing, an "Affiliate Transaction"), unless:
unless (ia) such Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Lessee or the relevant Restricted 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 (ii) the Company delivers to the Trustee (ab) with respect to (i) any Affiliate Transaction entered into after the first Issue Date involving with an aggregate consideration value in excess of $3.0 million500,000, a Board Resolution certifying majority of the directors of the General Partner having no direct or indirect economic interest in such Affiliate Transaction determines by resolution that such Affiliate Transaction complies with clause (ia) above and that approves such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (bii) with respect to any Affiliate Transaction involving aggregate consideration the purchase or other acquisition or sale, lease, transfer or other disposition of 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 $10.0 million15,000,000, Lessee delivers to Agent and the Participants an opinion as to the fairness to the Holders of Lessee or such Affiliate Transaction Subsidiary from a financial point of view issued by an investment banking, appraisal or accounting banking firm of national standing.
; provided, however, that (bi) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between any employment agreement 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 stock option agreement entered into by Lessee or any of its Subsidiaries in the ordinary course of business and all payments consistent with the past practice of Lessee (or the General Partner) or such Subsidiary, Restricted Payments permitted by the provisions of Section 5.28, and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates entered into by Lessee in the ordinary course of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including business in connection with acquisitions reinsuring the self-insurance programs or divestitures, which payments are approved by the Board other similar forms of Directors retained insurable risks of the Company retail propane businesses operated by Lessee, its Subsidiaries and its Affiliates, in good faith each case, shall not be deemed Affiliate Transactions, and (Bii) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on nothing herein shall authorize the Closing Date (including payments by Lessee to 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) General Partner or any amendment thereto (so long 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 the ordinary course of business; and provided, further, that the foregoing provisions of this Section 5.22 shall not apply to transfers of accounts receivable of Lessee to an SPE in connection with any such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt Accounts Receivable Securitization 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 with an unrelated Person5.21.
Appears in 2 contracts
Sources: Participation Agreement (Ferrellgas Partners Finance Corp), Participation Agreement (Ferrellgas Partners Finance Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoing, an "Affiliate TransactionAFFILIATE TRANSACTION"), unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii2) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i1) above 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 Directors; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate TransactionsTransactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and Restricted Payments that are permitted by Section 4.044.07 hereof;
(34) employment agreementscustomary loans, employee benefit plans advances, fees and related compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries;
(5) annual management fees paid to AP Holdings, Inc., Steamboat Holdings, Inc. and their Affiliates and their successor entities not to exceed $3.0 million in the aggregate in any one year;
(6) transactions pursuant to any contract or agreement in effect on the date of this Indenture as the same may be amended, modified or replaced from time to time so long as any such amendment, modification or replacement is no less favorable to the Company and its Restricted Subsidiaries than the contract or agreement as in effect on the date of this Indenture or is approved by a majority of the disinterested directors of the Company;
(7) transactions between the Company or its Restricted Subsidiaries on the one hand, and AP Holdings, Inc., Steamboat Holdings, Inc. and their Affiliates and successor entities on the other hand, involving the provision of financial or advisory services by AP Holdings, Inc., Steamboat Holdings, Inc. and their Affiliates and successor entities; PROVIDED, that fees payable to AP Holdings, Inc., Steamboat Holdings, Inc. and their Affiliates and successor entities do not exceed the usual and customary fees for similar services; and
(8) the insurance arrangements entered into between the Company and its Subsidiaries and ▇▇▇▇▇▇▇ Industries, Inc., AP Holdings, Inc., Steamboat Holdings, Inc. and their Affiliates that are not less favorable to the Company or any of its Subsidiaries than those that are in effect on the date hereof, PROVIDED such arrangements are conducted in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection consistent with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personpast practices.
Appears in 2 contracts
Sources: Indenture (Ap Holdings Inc), Indenture (Apcoa Standard Parking Inc /De/)
Transactions with Affiliates. (a) The Company Issuers shall ---------------------------- not, and shall not permit any of its the 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 Issuers (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company relevant Issuer or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company such Issuer or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 50.0 million, an Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Issuers and/or any of the Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Company and/or its Restricted Subsidiariesand any direct parent of the Company; provided that such parent of the Company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby[Reserved];
(4iv) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of any Issuer, any Restricted Subsidiary, or any direct or indirect parent of an Issuer;
(v) payments by any Issuer or any Restricted Subsidiary to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreements with the Sponsors described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) transactions in which an 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 such Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the applicable Issuer;
(ix) the existence of, or the relevant performance by any Issuer or any Restricted Subsidiary of its obligations under the terms of any transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 any Issuer or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Issue Date;
(x) the execution of the Transactions and the Post-Closing Restructuring Transaction, and the payment of all fees and expenses related to the Transactions and the Post-Closing Restructuring Transaction, including fees to Caesars Entertainment and its subsidiaries or the Sponsors, if any, which are described in the Offering Memorandum or contemplated by the Transactions and the Post-Closing Restructuring Transaction;
(xi) any transactions made pursuant to any Operations Management Agreement;
(xii) (A) transactions with 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, which are fair to the Issuers and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(xiii) any transaction effected as part of a comparable Qualified Receivables Financing;
(xiv) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(xv) 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 an Issuer or any direct or indirect parent of an Issuer or of a Restricted Subsidiary, as appropriate, in good faith;
(xvi) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xvii) any contribution to the capital of an Issuer;
(xviii) transactions permitted by, and complying with, Section 5.01;
(xix) transactions between any Issuer or any Restricted Subsidiary and any Person, a director of which is also a director of any Issuer or any direct or indirect parent of an Issuer; provided, however, that such director abstains from voting as a director of such Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xx) pledges of Equity Interests of Unrestricted Subsidiaries;
(xxi) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxii) any employment agreements entered into by any Issuer or any Restricted Subsidiary in the ordinary course of business; and
(xxiii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of an Issuer in an Officer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuers and their Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture. Notwithstanding the foregoing, Caesars Entertainment, Caesars Acquisition Company, a Delaware corporation, and their respective Affiliates (other than the Company and its Subsidiaries) shall not be considered Affiliates of the Issuers or their Subsidiaries with respect to any transaction, so long as the transaction is in the ordinary course of business, pursuant to agreements existing on the Issue Date or pursuant to any management agreement or shared services agreement entered into with an unrelated Personany of the Issuers and/or their Subsidiaries or, in each case, amendments, modifications or supplements thereto, or replacements thereof, that are not materially adverse to the Issuers or their Subsidiaries, taken as a whole.
Appears in 2 contracts
Sources: Indenture (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and shall not permit any of its the 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not less favorable to the Company Issuer or the relevant any Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 25.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of foregoing Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions solely between or among the Company Issuer and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe entering into of any agreement (and any amendment or modification of any such agreement so long as, employee benefit plans and related arrangements entered into in the ordinary course good faith judgment of business the Board of Directors of the Issuer, any such amendment is not disadvantageous to the Holders when taken as a whole, as compared to such agreement as in effect on the Issue Date) to pay, and the payment of, management, consulting, monitoring and advisory fees to the Sponsor (x) in an aggregate amount in any fiscal year not to exceed the greater of (A) $4.0 million and (B) 2.0% of EBITDA of the Issuer and the Restricted Subsidiaries for the immediately preceding fiscal year, plus out-of-pocket expense reimbursement and (y) so long as no Event of Default has occurred and is continuing, in the event of a Qualified IPO, the present value of all payments future amounts payable pursuant to any agreement referred to in subclause (x) above in connection with the termination of any such agreement with the Sponsor (the “Management Termination Fee”); provided, that if any such payment pursuant to subclause (y) is not permitted to be paid as a result of an Event of Default, such payment shall accrue and other transactions contemplated therebymay be payable when no Events of Default are continuing to the extent that no further Event of Default would result therefrom;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer, any Restricted Subsidiary, or any direct or indirect parent of the Issuer;
(v) (A) payments by the Issuer or any Restricted Subsidiary to the Sponsor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreement with the Sponsor described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) 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 4.07(a)(i);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the Holders in any material respectrespect than the original agreement as in effect on the Issue Date) or any payment or other transaction contemplated thereby as determined in good faith by the Issuer;
(ix) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, Acquisition Documents, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the foregoingIssue Date, and any transaction, agreement or arrangement described in the Offering Memorandum and, in each case, any amendment thereto or similar transactions, agreements or arrangements which it may enter into thereafter; and
(6) Debt provided, however, that the existence of, or the performance by the Issuer or any Restricted Subsidiary 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 Issue Date shall only be permitted by Section 4.03(b)(xthis clause (ix) to the extent that the terms of any such Debt is on terms thatexisting transaction, agreement or arrangement together with all amendments thereto, taken as a whole, or new transaction, agreement or arrangement are no less favorable not otherwise more disadvantageous to the Company Holders in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date;
(x) the execution of the Transactions, and the payment of all fees and expenses related to the Transactions, including fees to the Sponsor, which are contemplated by the Acquisition Documents;
(xi) (a) transactions with 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, which are fair to the Issuer and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the relevant Restricted Subsidiary than those that would senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (b) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norms;
(xii) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xiv) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xi);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, Section 5.01;
(xviii) transactions between the Issuer or any Restricted Subsidiary and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxi) any employment agreements entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business; and
(xxii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Issuer in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture.
Appears in 2 contracts
Sources: Indenture (Aeroways, LLC), Indenture (Cke Restaurants Inc)
Transactions with Affiliates. (a) The Company 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 their 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 foregoingCompany involving aggregate consideration in excess of $2.0 million (each, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, are no not materially less favorable to the Company or relevant Restricted Subsidiary than those that could 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, 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 covenant and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors of the Company disinterested with respect to such Affiliate Transaction.
(b) Section 4.11(a) shall not apply to:
(1) any employment, consultancy, advisory or other compensatory agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any Restricted Subsidiary of the Company in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction;
(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors’ fees;
(5) any transaction in which the only consideration paid by the Company or any of its Restricted Subsidiaries is in the form of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or any equity capital contribution made to the Company (other than in respect of Disqualified Stock) and any agreement that grants registration and other customary rights in connection therewith or otherwise to the direct or indirect security holders of the Company;
(6) Permitted Investments (other than Permitted Investments of the type described in clause 2(b) of the definition thereof) or Restricted Payments that do not violate Section 4.07;
(7) loans (or cancellation of loans) or advances to employees in the ordinary course of business;
(8) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Company;
(9) any agreement as in effect as of the Issue Date, including any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings thereof; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements, or refinancings are, in the good faith judgment of the Company, not materially more disadvantageous, taken as a whole, to the holders of the Notes;
(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 pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, and which are fair to the Company and its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors or Senior Management of the Company or any Restricted Subsidiary of the Company, as applicable, or are on terms, taken as a whole, at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(11) intellectual property licenses in the ordinary course of business;
(12) charitable contributions by the Company or its Restricted Subsidiaries made in good faith to a bona fide charitable trust or organization;
(13) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by, merged into or amalgamated, arranged or consolidated with the Company or any of its Restricted Subsidiaries; provided that such agreement was not entered into in contemplation of such acquisition, merger, amalgamation, arrangement or consolidation and any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the holders in the good faith judgment of Senior Management or the Board of Directors, when taken as a whole, as compared to the applicable agreement as in effect on the date of such acquisition, merger, amalgamation, arrangement or consolidation);
(14) any merger, amalgamation, arrangement, consolidation or other reorganization of the Company with an Affiliate solely for the purpose and with the sole effect of forming a holding company or reincorporating the Company in a new jurisdiction;
(15) pledges of Capital Stock or Indebtedness of Unrestricted Subsidiaries; and
(16) 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 Qualified Party stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, Person on an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingarm’s-length basis.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Person.
Appears in 1 contract
Transactions with Affiliates. Except as set forth on Schedule ---------------------------- 7.10, enter into any transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any Subsidiary) unless such transaction is (a) The Company shall ---------------------------- nototherwise permitted under this Agreement, (b) in the ordinary course of business of Holdings, the Borrower or such Subsidiary, as the case may be, 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 (each of the foregoing, an "Affiliate Transaction"), unless:
(ic) such Affiliate Transaction is on upon fair and reasonable terms that, taken as a whole, are no less favorable to Holdings, the Company Borrower or such Subsidiary, as the relevant Restricted Subsidiary case may be, than those that it would have been obtained obtain in a comparable arm's length transaction by with a Person that is not an Affiliate; provided that the Company or such Restricted Subsidiary with an unrelated Person; and
-------- foregoing restriction shall not apply to (i) reasonable and customary fees paid to members of the boards of directors of Holdings, the Borrower and its Subsidiaries, (ii) the Company delivers issuance of Capital Stock to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above employees and that such Affiliate Transaction has been approved by a majority consultants of the members of the Board of Directors Borrower pursuant to employment or consulting arrangements and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3iii) employment agreements, employee benefit plans and related consulting arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments business. Notwithstanding the foregoing, pursuant to Investcorp the ▇▇▇▇ Advisory Services Agreement approved by the board of directors of the Borrower, the Borrower and its Subsidiaries may pay to the Sponsor and its Control Investment Affiliates (whether or not such Persons are Affiliates of x) the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including transaction fees in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith Recapitalization as set forth on Schedule 7.10 and (By) of annual management, consulting and the advisory fees and related expenses;
(5) any agreement transaction fees described in effect on the Closing Date (including the Recapitalization ▇▇▇▇ Advisory Services Agreement, provided in no event shall any such fees be paid (but they may accrue) under the ▇▇▇▇ Advisory Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreementat any time an Event of Default under Section 8.1(a) or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in any material respectf) or any payment or other transaction contemplated by any of the foregoing; and
(6) 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 shall have been obtained in a comparable transaction with an unrelated Personoccurred and be continuing.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 ofof any of their respective Affiliates (including, without limitation, any Affiliate (each Unrestricted Subsidiary) or any officer, director or employee of the foregoingCompany or any Subsidiary (each, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, which are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been obtained could be available in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
unaffiliated third party and (ii) the Company delivers to the Trustee (a) with respect to any if such Affiliate Transaction entered into after the first Issue Date involving (or series of related Affiliate Transactions) involves aggregate payments or other consideration having a Fair Market Value in excess of $3.0 1.0 million, such Affiliate Transaction is in writing and a majority of the disinterested members of the Board Resolution certifying of Managers of the Company shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to foregoing provisions. In addition, any Affiliate Transaction involving aggregate payments or other consideration having a Fair Market Value in excess of $10.0 million, 5.0 million will also require a written opinion from an opinion as to Independent Financial Advisor (filed with the fairness to Trustee) stating that the Holders terms of such Affiliate Transaction are fair, from a financial point of view issued by an investment bankingview, appraisal to the Company or accounting firm of national standing.
(b) The provisions of the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this Section 4.07(a) 4.03 shall not prohibit apply to (and, the following shall not be deemed to be Affiliate Transactions):
(1i) transactions between with or among the Company and/or its and any Restricted Subsidiary or between or among Restricted Subsidiaries;
; (2ii) Permitted Investments reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Managers; (iii) any transactions undertaken pursuant to any contractual obligations in existence on the Issue Date (as in effect on the Issue Date); (iv) any Restricted Payments that made in compliance with Section 4.08; (v) the provision by Persons who may be deemed Affiliates or stockholders of the Company of investment banking, commercial banking, trust, lending or financing, investment, underwriting, placement agent, financial advisory or similar services to the Company or its Subsidiaries; (vi) reasonable and customary loans to employees of the Company and its Subsidiaries which are permitted approved by Section 4.04;
the Board of Managers of the Company in good faith; and (3vii) employment agreementstransactions with customers, employee benefit plans and related arrangements entered into clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates otherwise in compliance with the terms of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestituresthis Indenture, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 fair to the Company or its Restricted Subsidiaries, in the relevant Restricted Subsidiary than those that would reasonable determination of the Board of Managers of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained in a comparable transaction with at such time from an unrelated Personunaffiliated party.
Appears in 1 contract
Sources: Indenture (Aas Capital Corp)
Transactions with Affiliates. (a) The Company Issuers shall ---------------------------- not, and shall 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 (each Affiliate, officer or director of the foregoingIssuers (each, an "Affiliate Transaction"), unless:
: (ia) such Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Issuers or the relevant Restricted 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 (iib) the Company delivers Issuers deliver to the Trustee (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0, million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors Directors; and (bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 20.0 million, an opinion as to the fairness to the Holders Issuers of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
; provided, however, that this clause (b) The provisions of Section 4.07(aii) shall not prohibit (andapply to any transaction between or among the Company, Insight Communications, Tele-Communications, Inc. and their respective Subsidiaries; provided, however, that the following items shall not be deemed to be Affiliate Transactions):
Transactions and, therefore, will not be subject to the provisions of this Section 4.11: (1i) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) any employment agreements, employee benefit plans and related arrangements agreement entered into by the Issuers or any of their Restricted Subsidiaries in the ordinary course of business and all payments and other consistent with the past practice of the Issuers or such Restricted Subsidiary, (ii) transactions contemplated thereby;
between or among the Issuers and/or their Restricted Subsidiaries, (4iii) any payments transactions with a Person that is an Affiliate of the Issuers solely because an Issuer owns an Equity Interest in such Person, (iv) payment of reasonable directors fees to Investcorp and its Affiliates (whether or Persons who are not such Persons are otherwise Affiliates of the Issuers, (v) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Issuers, (vi) Restricted Payments that are permitted under Section 4.07 hereof; (vii) payment of management fees to Insight Communications Company, L.P. pursuant to the Management Agreements, (viii) any transactions or arrangements entered into, or payments made, pursuant to the terms of the Amended Kentucky Credit Facility or the Amended Indiana Credit Facility, (Aix) Permitted Investments, (x) any transactions or arrangements in existence on the date hereof; and (xi) any arrangement with affiliates of Source Media, Inc. for any financial advisory, financing, underwriting or placement the distribution of cable television services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personprogramming.
Appears in 1 contract
Transactions with Affiliates. (a) The Unless the Rating Condition is satisfied at the time of such action or event, the Company shall ---------------------------- not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer lease 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 foregoingeach, an "Affiliate Transaction"), unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would might have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10 million, a Board Resolution certifying of the Board of Directors of the Company set forth in an Officer's Certificate evidencing the good faith determination of a majority of the disinterested members of the Board of Directors (which will be conclusive and binding) that such Affiliate Transaction complies with clause this Section 3.14(a); and
(i) above and that such Affiliate Transaction has been approved by a majority of the 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 $10.0 25 million, an opinion as to the fairness to the Holders Company or the relevant Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standingstanding in the United States.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to Section 3.14(a) hereof:
(1i) transactions any employment, compensation, benefit or indemnification arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business with directors, employees or consultants;
(ii) loans or advances to directors, employees and consultants in the ordinary course of business or guarantees in respect thereof or otherwise made on their behalf (including any payments on such guarantees);
(iii) any transaction between or among the Company and/or and one or more of its Restricted SubsidiariesSubsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction) or between one or more Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary in connection with such transaction);
(2iv) any transaction with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in and/or controls such Person;
(v) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
(vi) sales or other dispositions of accounts receivable and related assets and interests therein of the type specified in the definition of "Qualified Receivables Transaction" to a Receivables Entity in a Qualified Receivables Transaction, Permitted Investments and other transactions in connection with a Qualified Receivables Transaction and any other Standard Securitization Undertakings in connection with a Qualified Receivables Transaction; and
(vii) 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Person3.9 hereof.
Appears in 1 contract
Sources: Third Supplemental Trust Indenture (Louisiana Pacific Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- C▇▇▇▇▇▇ will not, and shall 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 (each of the foregoingeach, an "“Affiliate Transaction"”), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company C▇▇▇▇▇▇ or the relevant Restricted Subsidiary than those that would have been obtained obtained, at the time of the transaction, in a comparable transaction by the Company C▇▇▇▇▇▇ or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate of C▇▇▇▇▇▇ or any of its Restricted Subsidiaries; and
(ii2) C▇▇▇▇▇▇ or the Company Issuer delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 US$2.5 million, a resolution of the Board Resolution of Directors of C▇▇▇▇▇▇ set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and of C▇▇▇▇▇▇; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 US$20.0 million, an opinion as to the fairness to C▇▇▇▇▇▇ or the Holders relevant Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standingstanding in Canada or the United States.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions4.11(a):
(1) any employment agreement entered into by C▇▇▇▇▇▇ or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of C▇▇▇▇▇▇ or such Restricted Subsidiary;
(2) transactions between or among the Company C▇▇▇▇▇▇ and/or its Restricted Subsidiaries;
(23) Permitted Investments transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of C▇▇▇▇▇▇ solely because C▇▇▇▇▇▇ owns an Equity Interest in, or controls, such Person;
(4) payment of reasonable and customary compensation or fees to any directors, or the execution of customary expense reimbursement, indemnification or similar arrangements with any directors and officers, of the Issuer or C▇▇▇▇▇▇ or its Restricted Subsidiaries in the ordinary course of business;
(5) sales of Equity Interests (other than Disqualified Stock) of C▇▇▇▇▇▇;
(6) Restricted Payments that are permitted by Section 4.044.07 hereof and Permitted Investments (other than pursuant to clauses (3) and (8) of the definition of Permitted Investments);
(37) employment agreements, employee benefit plans any transaction pursuant to any agreement in existence on the Issue Date and related arrangements entered into disclosed in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates confidential offering circular of the Company) (A) for any financial advisoryIssuer dated November 15, financing, underwriting or placement services or in respect of other investment banking activities, including 2005 prepared in connection with acquisitions or divestitures, which payments are approved by the Board of Directors offering of the Company Initial Notes, or any amendment, replacement or refinancing thereof that, taken in good faith its entirety, is no less favourable to C▇▇▇▇▇▇ and (B) of annual management, consulting and advisory fees and related expenses;
(5) any its Restricted Subsidiaries than such agreement in 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 foregoingIssue Date; and
(68) any sale of securities (including Disqualified Stock but excluding other Equity Interests) Debt permitted by Section 4.03(b)(x) made to an Affiliate on the same terms as are being made to the extent non-Affiliate investors in any public or private sale of such Debt is on terms that, taken as a whole, are no less favorable to securities; provided that any such sale complies with the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated Personrequirements of clause (1) of Section 4.11(a) hereof.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingeach, an "Affiliate TransactionAFFILIATE TRANSACTION"), unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have reasonably been expected to have been obtained in a comparable transaction at such time by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii2) the Company delivers to the Trustee Trustee:
(ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 U.S.$5.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.07 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 $10.0 U.S.$15.0 million, an opinion as to the fairness to the Holders Company or the relevant Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by -43- an investment bankingaccounting, appraisal or accounting investment banking firm of national standingstanding in Canada or the United States selected by the Company.
(b) The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary or approved by a majority of the disinterested members of the Board of Directors of the Company (or a committee comprised solely of disinterested directors);
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments and Restricted Payments transactions with a Person that are permitted by Section 4.04is an Affiliate of the Company solely because the Company owns an Equity Interest in, or controls, such Person;
(34) employment agreementspayment of reasonable and customary compensation or fees to, employee benefit plans or the execution of customary expense reimbursement, indemnification or similar arrangements with, the Company or any of its Restricted Subsidiaries or any of their respective directors and related arrangements entered into officers in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesbusiness;
(5) any agreement in effect on the Closing Date sales of Equity Interests (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998other than Disqualified Stock) 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 Affiliates of the foregoingCompany; and
(6) Debt Restricted Payments and Permitted Investments that are 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 with an unrelated Person4.03.
Appears in 1 contract
Sources: First Supplemental Indenture (Paramount Resources LTD)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not permit any of its the 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")”) involving aggregate consideration in excess of $45 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 112.5 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Company, approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company and/or its any of the Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Company and any direct parent of the Company; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and related arrangements entered into in indemnity provided on behalf of, officers, directors, employees or consultants of the ordinary course Company, any Restricted Subsidiary, or any direct or indirect parent of business and all payments and other transactions contemplated therebythe Company;
(4iv) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(v) payments or loans (or cancellation of loans) to Investcorp and its Affiliates (whether officers, directors, employees or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, consultants which payments are approved by a majority of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the Company;
(vii) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of any stockholders 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (vii) 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 no less not otherwise more disadvantageous to the holders of the Notes in any material respect than the original transaction, agreement or arrangement as in effect on the Issue Date;
(viii) (A) transactions with 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, which are fair to the Company and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(ix) any transaction effected as part of a Qualified Securitization Financing;
(x) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Person;
(xi) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, management equity plans, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company or the relevant Board of Directors of any direct or indirect parent of the Company, or the Board of Directors of a Restricted Subsidiary, as applicable, in good faith;
(xii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii) and the performance under any such agreement or arrangement;
(xiii) any contribution to the capital of the Company;
(xiv) transactions permitted by, and complying with, Section 5.01;
(xv) transactions between the Company or any Restricted Subsidiary than those and any Person, a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that would have been obtained such director abstains from voting as a director of the Company or such direct or indirect parent of the Company, as the case may be, on any matter involving such other Person;
(xvi) pledges of Equity Interests of Unrestricted Subsidiaries;
(xvii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xviii) any employment agreements entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
(xix) transactions undertaken in good faith (as certified by a comparable transaction with responsible financial or accounting officer of the Company in an unrelated PersonOfficers’ Certificate) for the purpose of improving the consolidated tax efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Indenture; and
(xx) non-exclusive licenses of intellectual property to or among the Company, its Restricted Subsidiaries and their Affiliates.
Appears in 1 contract
Sources: Indenture (XPO Logistics, Inc.)
Transactions with Affiliates. (a) The Company 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 in any single transaction or series of related transactions involving aggregate payments or consideration in excess of $5.0 million (each of the foregoingeach, an "Affiliate Transaction"), unless:
(ia) such Affiliate Transaction is on terms that, taken as a whole, 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; and
(iib) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above this 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 involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) Directors. The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1a) transactions between or among the Company and/or its Restricted Subsidiariesreasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder;
(2b) Permitted Investments and any obligations of the Company under any employment agreement, noncompetition or confidentiality agreement with any officer of the Company, as in effect on the date of this Indenture (provided that each amendment of any of the foregoing agreements shall be subject to the limitations of this Section 4.11);
(c) Restricted Payments that are permitted by the provisions of Section 4.044.07 hereof;
(3d) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreementsarrangements, employee benefit stock options and stock ownership plans and related arrangements entered into approved by the Board of Directors;
(e) loans or advances to employees in the ordinary course of business and all payments and other transactions contemplated therebyof the Company or any of its Restricted Subsidiaries consistent with the past practices;
(4f) payments by the Company or any payments of its Restricted Subsidiaries to Investcorp and PIA or its Affiliates (whether or not such Persons are Affiliates of the Company) (A) made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activitiesor similar services, including 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 and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5g) any agreement transactions in 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 foregoing; and
(6) 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 which the Company or any of its Restricted Subsidiaries, as the relevant Restricted Subsidiary than those case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that would have been obtained in a comparable transaction with an unrelated Person.such transaction
Appears in 1 contract
Sources: Indenture (Carmike Cinemas Inc)
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, 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; and
Person and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 1.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 5.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
; provided that (bv) The provisions sales of Section 4.07(aReceivables to the Receivables Subsidiary on arm's length terms, (w) shall not prohibit any transaction in accordance with the terms of any Existing Employment Agreement as the same are in effect on the Issue Date and any employment agreement entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Subsidiary, (and, the following shall not be deemed to be Affiliate Transactions):
(1x) 45 49 transactions between or among the Company and/or its Controlled Subsidiaries, (y) transactions pursuant to the Tax Allocation Agreement as in effect on the date of this Indenture and (z) Restricted Subsidiaries;
(2) Payments and Permitted Investments and Restricted Payments that are permitted by the provisions of Section 4.04;
4.07 hereof, in each case, shall not be deemed Affiliate Transactions. In addition, the Company shall not, and shall not permit any of its Subsidiaries to, merge with or into, or purchase all or substantially all of the assets of, any Affiliate, unless (3i) employment agreementssuch Affiliate had positive Consolidated Cash Flow in each of its most recently ended two full fiscal years and (ii) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such transaction is entered into, employee benefit plans and related arrangements determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the transaction had been entered into in at the ordinary course beginning of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) for any financial advisoryfour-quarter period, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personhigher than the actual Fixed Charge Coverage Ratio for such four-quarter period.
Appears in 1 contract
Sources: Indenture (Printpack Inc)
Transactions with Affiliates. (a) The Company Issuer 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $15.0 million, unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the its relevant Restricted 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
(ii2) the Company delivers to the Trustee (a) Issuer, with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $3.0 25.0 million, adopts a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved resolution by a the majority of the members board of directors of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of Issuer approving such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingTransaction.
(b) The provisions of Section 4.07(a4.12(a) hereof shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1) transactions between or among the Company and/or Issuer 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 the definition of “Permitted Investments”;
(3) the payment of management, consulting, monitoring and advisory fees and related expenses pursuant to the Management Agreement;
(4) the payment of reasonable and customary fees paid to, and indemnities provided for the benefit of, officers, directors, employees or consultants of Issuer, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(25) Permitted Investments and transactions in which the Issuer or any of its Restricted Payments 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 permitted 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 Section 4.04the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(36) employment agreementsany agreement or arrangement as in effect as of the Issue Date, employee benefit plans 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 Issuer 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 related arrangements any 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 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 all payments otherwise in compliance with the terms of this Indenture which are fair to the Issuer and other transactions contemplated therebyits Restricted Subsidiaries, in the reasonable determination of the board of directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(49) any payments to Investcorp and its Affiliates the issuance of Equity Interests (whether or not such Persons are Affiliates other than Disqualified Stock) of the CompanyIssuer to any Permitted Holder or to any director, officer, employee or consultant;
(10) sales of accounts receivable, or participations therein, in connection with customary receivables financing and factoring;
(A11) payments by the Issuer or any of its Restricted Subsidiaries to any of the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are approved by the Board of Directors a majority of the Company board of directors of the Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(512) payments or loans (or cancellation of loans) to employees, directors or consultants of the Issuer, any agreement in 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) of its direct or indirect parent companies or any amendment thereto 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 Issuer in good faith;
(13) loans by any Sponsor to the Issuer or any of its Restricted Subsidiaries or investments by any Sponsor in loans or securities of the Issuer or any of its Restricted Subsidiaries so long as (i) the loan or security is being offered generally to other investors or lenders on the same or more favorable terms and (ii) the investment by such Sponsor and its Affiliates constitutes less than 10% of the proposed or outstanding issue amount of such class of loans or securities; provided, however, that for the purposes of this sub-clause (ii), such 10% limitation shall not apply to secondary market purchases of loans or securities;
(14) payments by the Issuer (and any direct or indirect parent thereof) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any such amendment is not disadvantageous parent) and its Subsidiaries on customary terms to the Holders extent attributable to the ownership or operation of the Issuer and its Subsidiaries; provided that in each case the amount of such payments in any material respectfiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries) or would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Issuer and its Restricted Subsidiaries (to the extent described above) to pay such taxes separately from any payment or other transaction contemplated by any of the foregoingsuch parent entity; and
(615) Debt permitted by Section 4.03(b)(x) to leases with any Affiliates entered into in 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 with an unrelated Personordinary course of business.
Appears in 1 contract
Sources: Indenture (Toys R Us Inc)
Transactions with Affiliates. (a) The Company 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 (each of the foregoingeach, an "“Affiliate Transaction"”), involving aggregate payments or considerations in excess of $5.0 million unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, 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 a Person who is not an unrelated PersonAffiliate; and
(ii) the Company delivers to the Trustee Trustee:
(a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a Board Resolution an Officers’ Certificate certifying that such Affiliate Transaction complies with clause this Section 4.11; and
(ib) above with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of Cinemark Holdings, Inc. and 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 Cinemark Holdings, Inc. and (b) with respect the Company. The following items shall be deemed to any not be Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (Transactions and, the following therefore, shall not be deemed subject to be Affiliate Transactions):the provisions of the prior paragraph:
(1i) any employment, consulting or similar agreement or other compensation arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(2iii) Permitted Investments transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in, or controls, such Person;
(iv) reasonable fees and expenses and compensation paid to, and indemnity provided on behalf of, officers, directors or employees of the Company or any Subsidiary as determined in good faith by the Board of Directors or senior management of the Company;
(v) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(vi) Restricted Payments that are permitted by Section 4.044.07, Permitted Investments (other than pursuant to clause (iii) of such definition) and any transactions excluded from their or any component definitions;
(3vii) employment transactions effected in connection with the Notes Transactions, including the payment of all related fees and expenses;
(viii) transactions pursuant to any contract or agreement described in the Offering Memorandum under the caption “Certain Relationships and Related Party Transactions,” as in effect on the Issue Date, in each case as amended, modified or replaced from time to time so long as the amended, modified or new agreements, employee benefit plans taken as a whole, are not materially less favorable to the Company and related arrangements entered into its Restricted Subsidiaries taken as a whole than those in effect on the Issue Date;
(ix) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case, in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments otherwise in compliance with the terms of this Indenture which are fair to Investcorp the Company and its Affiliates (whether or not such Persons are Affiliates Restricted Subsidiaries, in the reasonable determination of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual managementor the senior management thereof, consulting and advisory fees and related expensesor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(5x) any agreement in effect on the Closing Date (including pledge of Equity Interests of an Unrestricted Subsidiary to its lenders to support 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 Indebtedness of such amendment is not disadvantageous Unrestricted Subsidiary owed to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoingsuch lenders; and
(6xi) Debt permitted by Section 4.03(b)(x) transactions in which the Company or any of its Restricted Subsidiaries delivers to the extent Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such Debt transaction is on fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms that, taken as a whole, are no not materially less favorable to the Company or the relevant such Restricted Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated PersonPerson on an arm’s-length basis.
Appears in 1 contract
Sources: Indenture (Cinemark Usa Inc /Tx)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 ofof any of their respective Affiliates or any officer, director or employee of the Company or any Affiliate Restricted Subsidiary (each of the foregoing, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, which are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been obtained be available in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
unaffiliated third party and (ii) (A) if such Affiliate Transaction (or series of related Affiliate Transactions) involves aggregate payments or the transfer of other consideration between the Company delivers to and an Affiliate of the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration Company having a Fair Market Value in excess of $3.0 5.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause is in writing or (iB) above and that if such Affiliate Transaction has been approved by a majority (or series of related Affiliate Transactions) involves aggregate payments or the transfer of other consideration between the Company and an Affiliate of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration Company having a Fair Market Value in excess of $10.0 million, such Affiliate Transaction is in writing and the Company obtains a written opinion from an opinion as Independent Financial Advisor (sent to each Holder) stating that the fairness to the Holders terms of such Affiliate Transaction are fair, from a financial point of view issued by an investment bankingview, appraisal to the Company or accounting firm of national standing.
(b) The provisions of Section 4.07(a) the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not prohibit apply to (and, the following shall not be deemed to be Affiliate Transactions):
(1i) transactions between with or among the Company and/or its and any Restricted Subsidiary or between or among Restricted Subsidiaries;
; (2ii) Permitted Investments 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 and compensation paid to and indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors; (iii) the payment of fees and expenses to Vestar or any of its Affiliates (A) pursuant to the Management Agreement, as in effect on the Issue Date, or (B) pursuant to any amended, supplemented or replacement management agreement in an aggregate amount not to exceed 1.25% of Consolidated EBITDA for the last four full fiscal quarters completed prior to the date of such payment; (iv) any Restricted Payments that are permitted by made in compliance with Section 4.04;
9; (3v) employment agreementsloans and advances to officers, employee benefit plans directors and related arrangements entered into employees of the Company or any Restricted Subsidiary made in the ordinary course of business business; (vi) the entering into by the Company and all payments and other transactions contemplated thereby;
any of its Restricted Subsidiaries of a tax sharing or similar arrangement; (4vii) any payments employment agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business; (viii) payment of reasonable Directors' fees to Investcorp and its Affiliates (whether or Persons who are not such Persons are otherwise Affiliates of the Company; (ix) any sale or other issuance of Equity Interests (Aother than Disqualified Equity Interests) of the Company; (x) payments by the Company or any Restricted Subsidiary to Vestar and its Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestituresother corporate transactions, in amounts which payments are (a) usual and customary for transactions of such type, in an amount not to exceed 1% of the value of any such transaction or (b) approved by a majority of the disinterested members of the Board of Directors of the Company as comparable to that which would be charged by an unaffiliated third party for such services; (xi) transactions permitted by the Vestar/▇▇▇▇ LLC Agreement; (xii) sales or other transfers or dispositions of accounts receivable and other related assets customarily transferred in good faith an asset securitization transaction involving accounts receivable to a Receivables Entity in a Qualified Receivables Transaction, and acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction; (Bxiii) of annual management, consulting and advisory fees and related expenses;
(5) any agreement leases in effect on the Closing Issue Date and any renewals thereof which include substantially similar terms; (xiv) the Transactions and the payment of all fees and expenses related thereto; (xv) any agreement as in effect on the Issue Date (including including, without limitation, each of the Recapitalization Agreement, agreements entered into in connection with the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreementTransactions) or any amendment thereto transaction contemplated thereby; and (so long as xvi) any such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any the terms of the foregoing; and
(6) 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 with an unrelated PersonPreferred Stock.
Appears in 1 contract
Sources: Modification Agreement (St John Knits International Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not 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 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 (each of the foregoing, Company (an "Affiliate Transaction"), unless:
(i) the terms of such Affiliate Transaction is on terms thatare:
(1) set forth in writing, taken as a whole, are and 50
(2) no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been could 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 with an unrelated Person; andCompany,
(ii) the Company delivers to the Trustee (a) with respect to any if such Affiliate Transaction entered into after the first Issue Date involving involves aggregate consideration payments or value in excess of $3.0 2.0 million, the Board of Directors (including a majority of the disinterested members of the Board Resolution certifying of Directors) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (ia)(i)(2) above and that as evidenced by a Board Resolution promptly delivered to the Trustee, and
(iii) if such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving involves aggregate consideration payments or value in excess of $10.0 million, the Company obtains a written opinion from an opinion as Independent Financial Advisor to the fairness effect that the consideration to the Holders of be paid or received in connection with such Affiliate Transaction is fair, from a financial point of view issued by an investment bankingview, appraisal or accounting firm of national standingto the Company and the Restricted Subsidiaries, taken as a whole.
(b) The provisions of Section 4.07(a) shall not prohibit (andNotwithstanding the foregoing limitation, the following Company or any Restricted Subsidiary may enter into or suffer to exist the following, which shall not be deemed to be Affiliate Transactions)::
(1i) any transaction or series of transactions between or among the Company and/or its and one or more Restricted Subsidiaries or between two or more Restricted Subsidiaries, provided that no more than 5% of the total voting power of the Voting Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(2ii) Permitted Investments and any Restricted Payments that are Payment permitted by to be made pursuant to Section 4.044.9;
(3iii) employment agreements, the payment of compensation (including amounts paid pursuant to employee benefit plans plans) for the personal services of officers and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates directors of the Company) (A) for Company or any financial advisoryof the Restricted Subsidiaries, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by so long as the Board of Directors in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation to be fair consideration therefore;
(iv) indemnities of officers, directors and employees of the Company in good faith and (B) or any of annual management, consulting and advisory fees and related expenses;its Restricted Subsidiaries permitted by bylaw or statutory provisions; and
(5v) any the operating agreement between the Company and dPi as in 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 foregoing; and
(6) 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 with an unrelated PersonIssue Date.
Appears in 1 contract
Sources: Indenture (Rent Way Inc)
Transactions with Affiliates. (a) The Company shall Except as provided in or ---------------------------- notwith respect to the Project Documents as in effect on the Closing Date, and the Guarantor 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, agreement understanding, loan, advance or guarantee with, with or for the benefit of, any Affiliate (each of the foregoingeach, an "Affiliate Transaction"), unless:
unless (ia) such Affiliate --------------------- Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary Guarantor than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary Guarantor with an unrelated Person; and
and (iib) the Company Guarantor delivers to the Trustee (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 1.0 million, a Board Resolution resolution of the general partner of the Guarantor set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above this covenant and that such Affiliate Transaction has been approved by a majority all of the members partners of the Board of Directors Guarantor; and (bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 5.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and. Notwithstanding the above, the following shall not be deemed not to be Affiliate Transactions):
: (1w) transactions ---------------------- between or among one or more of the Company and/or its Restricted Subsidiaries;
Guarantor, BLM, Navy II or Funding Corp.; (2x) Permitted Investments payment of any Operating and Maintenance Fees or Management Fees, provided that such payment is made in accordance with the provisions of Sections 3.1(c) and 3.8(b) of the Depositary Agreement; and (z) Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into in to be made pursuant to the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates terms of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Depository 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 foregoing; and
(6) 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 with an unrelated Person.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall Neither Holdings nor ---------------------------- notthe Borrower will, and shall not nor will they permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer lease or otherwise dispose of transfer any of its properties property or assets to, or purchase purchase, lease or otherwise acquire any property or assets from, or enter into or make or amend otherwise engage in any transaction, contract, agreement, understanding, loan, advance or guarantee other transactions with, or for the benefit ofany of its Affiliates, any Affiliate except (each of the foregoing, an "Affiliate Transaction"), unless:
(ia) such Affiliate Transaction is transactions that do not involve Holdings and are at prices and on terms that, taken as a whole, are no and conditions not less favorable to the Company Borrower or the relevant Restricted such Subsidiary than those could be obtained on an arm's- length basis from unrelated third parties, provided that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company Borrower delivers -------- to the Trustee Administrative Agent (ai) with respect to any Affiliate Transaction entered into after the first Issue Date transaction or series of related transactions involving aggregate consideration in excess of 107 $3.0 million2,000,000, a Board Resolution resolution of the Borrower's board of directors set forth in an officers' certificate certifying that such Affiliate Transaction transaction complies with this clause (ia) above and that such Affiliate Transaction transaction has been approved by a majority of the disinterested members of the Board Borrower's board of Directors directors and (bii) with respect to any Affiliate Transaction transaction or series of related transactions involving aggregate consideration in excess of $10.0 million10,000,000, an opinion as to the fairness to the Holders Lenders of such Affiliate Transaction transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
, (b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or Borrower and its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments Subsidiaries that are Subsidiary Loan Parties which do not involve any other Affiliate, (c) any Restricted Payment permitted by Section 4.04;
6.07, (3d) loans to management of Holdings or the Borrower permitted by clause (h) of Section 6.04, (e) payments made under and in accordance with agreements in effect on the Amendment Effective Date and specified in a Schedule 6.08 (without giving effect to any amendment or modification thereof that has not been approved by the Required Lenders), (f) any employment agreements, employee benefit stock option or other compensation agreements or plans (and related arrangements the payment of amounts or the issuance of securities thereunder) and other reasonable fees, compensation, benefits and indemnities paid or entered into by Holdings or any of its Subsidiaries in the ordinary course of business of Holdings or such Subsidiary to or with the officers, directors or employees of Holdings or its Subsidiaries, (g) sales of common stock of Holdings, when such sales are exclusively for cash and all (h) Credit Card Loss Sharing payments to Sears and other transactions contemplated thereby;
with Sears pursuant to the agreements listed on Schedule 6.08 hereto (4) any payments without giving effect to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt modification thereof that is on terms that, taken as a whole, are no and conditions less favorable to the Company Borrower and its Subsidiaries than could be obtained on an arms-length basis from unrelated third parties or is otherwise materially adverse to the relevant Restricted Subsidiary than those that would have Lenders unless such amendment or modification has been obtained in a comparable transaction with an unrelated Personapproved by the Required Lenders).
Appears in 1 contract
Transactions with Affiliates. (a) The During the Base Period, except as ----------------------------- expressly contemplated herein or in any agreement executed in connection herewith, neither the Company nor any Subsidiary shall ---------------------------- notenter into any contract or other arrangement with, and shall not permit issue any of its Restricted Subsidiaries to, make any payment security to, or sell, lease, transfer or otherwise dispose of make 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 ofinvestment in, any Affiliate (each of the foregoing, an "Affiliate Transaction")Company, unless:
(i) the terms of such Affiliate Transaction is on terms thatcontract, taken arrangement, security or investment are (A) set forth in writing and (B) at least as a whole, are no less favorable to the Company or the relevant Restricted such Subsidiary than those as terms that would have been obtained in be obtainable at the time for a comparable transaction by or series of similar transactions in arm's-length dealings with an unrelated third person or, if such standard would not be relevant, are otherwise fair to the Company or such Restricted Subsidiary with an unrelated PersonSubsidiary; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying extent that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 millioncontract, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an arrangement, security or investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved is known by the Board of Directors of the Company in good faith and (B) or such Subsidiary to involve an Affiliate of annual managementthe Company, consulting and advisory fees and related expenses;then:
(5A) any agreement with respect to a transaction or series of related transactions involving aggregate pay ments or other consideration in effect on excess of $50,000, such transaction or series of related transactions has been determined to satisfy the Closing Date requirements of clause (including i)(B) above by a majority of those members of the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and Board of Directors of the Company and the Brevard lease agreement) or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders Subsidiary having no personal stake in any material respect) such transaction or any payment or other transaction contemplated by any series of the foregoingtransactions; and
(6B) Debt permitted by Section 4.03(b)(x) with respect to a transaction or series of related transactions involving aggregate payments or other consideration in excess of $1,000,000, such transaction or series of related transactions has been determined, in the extent such Debt is on terms thatwritten opinion of a nationally recognized investment banking firm to be fair, taken as from a wholefinancial point of view, are no less favorable to the Company or such Subsidiary. Notwithstanding the relevant Restricted Subsidiary than those that would have foregoing, the issuance by the Company of its Junior Preferred Stock and the payment of fees and expenses in connection therewith in accordance with the terms set forth in the term sheet set forth in Exhibit G hereto and the execution, delivery and/or issuance of employment contracts and employee stock options in the ordinary course of business shall be deemed to satisfy the requirements of this Section 1(c)(J). Notwithstanding anything to the contrary herein, the foregoing requirements of this paragraph (J) shall not apply to any sale of the Company, by merger or otherwise, in connection with a foreclosure pursuant to the Pledge Agreement, so long as such sale has been obtained in determined, by a comparable transaction with an unrelated Personnationally recognized investment banking firm, to be fair, from a financial point of view, to the Company's stockholders.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Firearms Training Systems Inc)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $25.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 75.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements(x) the entering into of any agreement (and any amendment or modification of any such agreement so long as, employee benefit plans and related arrangements entered into in the ordinary course good faith judgment of business the Board of Directors of the Issuer, any such amendment is not disadvantageous to the holders when taken as a whole, as compared to such agreement as in effect on the Issue Date) to pay, and the payment of, management, consulting, monitoring and advisory fees to the Sponsors in an aggregate amount in any fiscal year not to exceed the greater of (A) $30.0 million and (B) 1.0% of EBITDA of the Issuer and its Restricted Subsidiaries for the immediately preceding fiscal year, plus out-of-pocket expense reimbursement; provided, however, that any payment not made in any fiscal year may be carried forward and paid in the following two fiscal years and (y) the payment of the present value of all payments and other transactions contemplated therebyamounts payable pursuant to any agreement described in clause (iii)(x) of this Section 4.07(b) in connection with the termination of such agreement;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary, any direct or indirect parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreements with the Sponsors described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the Issuer;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, Acquisition Documents, 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 Issuer 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 Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Issue Date;
(x) the execution of the Acquisition Transactions, and the payment of all fees and expenses related to the Acquisition Transactions, including fees to the Sponsors, which are described in the Offering Memorandum or contemplated by the Acquisition Documents;
(xi) any transactions made pursuant to any Operations Management Agreement and any transactions in connection with the use of the revolving credit facility under the Credit Agreement for the account or benefit of the Subsidiaries of ▇▇▇▇▇▇’▇ Entertainment other than the Issuer and its Subsidiaries (including the distribution of the proceeds of any such revolving credit Indebtedness and with respect to the issuance of, or payments in respect of drawings under, letters of credit);
(xii) (A) transactions with 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, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(xiii) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xiv) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xv) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xvi) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xvii) any contribution to the capital of the Issuer;
(xviii) transactions permitted by, and complying with, Section 5.01;
(xix) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xx) pledges of Equity Interests of Unrestricted Subsidiaries;
(xxi) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxii) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(xxiii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Issuer in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture; and
(xxiv) the execution of the Transactions and the payment of all fees and expenses related to the Transactions.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 permit to exist any transaction (including the purchase, sale, lease or amend exchange of any transactionproperty, contract, agreement, understanding, loan, advance employee compensation arrangements or guarantee the rendering of any service) with, or for the benefit of, any Affiliate (each of the foregoing, Company (an "“Affiliate Transaction"), ”) unless:
(i1) such the terms of the Affiliate Transaction is on terms that, (taken as a whole, ) are no less favorable to the Company or the relevant such Restricted Subsidiary than those that would have been could be obtained at the time of the Affiliate Transaction in arm’s-length dealings with a comparable transaction by the Company or such Restricted Subsidiary with Person who is not an unrelated Person; andAffiliate;
(ii2) the Company delivers to the Trustee (a) with respect to any if such Affiliate Transaction entered into after the first Issue Date involving aggregate consideration involves an amount in excess of $3.0 5.0 million, a Board Resolution certifying that such the terms of the Affiliate Transaction complies with clause (i) above are set forth in writing and that such Affiliate Transaction has been approved by a majority of the members non-employee directors of the Company disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction as evidenced by a resolution of the Board of Directors and of the Company; and
(b3) with respect to any if such Affiliate Transaction involving aggregate consideration involves an amount in excess of $10.0 15.0 million, the Board of Directors of the Company shall also have received a written opinion from an opinion as Independent Qualified Party to the fairness to the Holders of effect that such Affiliate Transaction is fair (taken as a whole), from a financial point of view issued by standpoint, to the Company and the Restricted Subsidiaries or is not less favorable to the Company and the Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an investment banking, appraisal or accounting firm of national standingarm’s length transaction if such Person were not an Affiliate.
(b) The provisions of Section 4.07(athe preceding paragraph (a) shall not prohibit (and, the following shall will not be deemed to be Affiliate Transactions):applicable to:
(1) transactions between any Permitted Investment and any Investment (other than a Permitted Investment) or among the Company and/or its other Restricted SubsidiariesPayment permitted to be made pursuant to Section 4.07 hereof;
(2) Permitted Investments 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 Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit stock ownership plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company;
(3) the payment of reasonable fees to directors of the Company, the Restricted Subsidiaries and any direct or indirect parent company of the Company who are not employees of the Company or the Restricted Subsidiaries;
(4) reasonable director, officer, employee and consultant compensation, benefit, reimbursement and indemnification agreements, plans and arrangements entered into by the Company, any of the Restricted Subsidiaries and any direct or indirect parent company of the Company in good faith and (B) the ordinary course of annual management, consulting and advisory fees and related expensesbusiness;
(5) any agreement transaction between and/or among the Company and a Restricted Subsidiary or any joint venture or similar entity which would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in effect or otherwise controls such Restricted Subsidiary, joint venture or similar entity;
(6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company or any direct or indirect parent company of the Company or the granting or performance of registration rights in respect of any such Capital Stock, which rights have been approved by the Board of Directors of such Person;
(7) payments by the Company to or on behalf of any direct or indirect parent of the Closing Date (including Company in an amount sufficient to pay out-of-pocket legal, accounting and filing and other general corporate overhead costs actually incurred by any direct or indirect parent of the Recapitalization AgreementCompany in the ordinary course of business and approved by the Board of Directors of the Company; provided, however, that such costs are determined in good faith by the Services Agreement (as amended on April 15, 1998) between Board of Managers of the Berkshire Companies Limited Partnership and Company to be reasonably attributable or allocable to the ownership of the Company and the Brevard lease agreement) or any amendment thereto Restricted Subsidiaries;
(so long as any such amendment is not disadvantageous 8) the payment of fees, expenses and indemnities to ▇▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to the Holders Management Agreement and dividends and distributions made in any material respectthe manner described in the Offering Memorandum under “Use of Proceeds”;
(9) or any payment or other transaction contemplated by any of consulting fees and director’s fees payable pursuant to the foregoingConsulting Agreement; and
(610) Debt permitted by Section 4.03(b)(x) the provision of services in the ordinary course of business at rates comparable to the extent such Debt is on terms that, taken those offered to third party customers to an Affiliate which would constitute an Affiliate Transaction solely as a whole, are no less favorable to result of the Company or any of the relevant Restricted Subsidiary than those that would have been obtained Subsidiaries being in a comparable transaction or under common control with an unrelated Personsuch Affiliate.
Appears in 1 contract
Sources: Indenture (PRETIUM CANADA Co)
Transactions with Affiliates. (a) The Company 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 the Company’s or its Restricted Subsidiaries’ respective 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 foregoingeach, an "“Affiliate Transaction"”), unless:
(ia) such the Affiliate Transaction is on terms that, taken as a whole, whole 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; and
(iib) the Company delivers to the Trustee Trustee:
(ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 20.0 million, a resolution of the Company’s Board Resolution of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.14 and that such Affiliate Transaction has been approved by a majority of the Board of Directors of the Company (and, if any, a majority of the disinterested members of the Board of Directors and of the Company with respect to such transaction); and
(bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 50.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) . The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1A) any customary consulting or employment agreement or arrangement, benefit arrangement or plan, incentive compensation plan, stock option or stock ownership plan, employee benefit plan, severance arrangements, expense reimbursement arrangements, officer or director indemnification agreement or any similar arrangement, including those agreements that have been filed with the SEC by the Company pursuant to the Securities Act or the Exchange Act as of the date hereof, entered into by the Company or any of its Restricted Subsidiaries for the benefit of the Company’s directors, officers, employees and consultants and payments and transactions pursuant thereto, in each case, in the ordinary course of business;
(B) transactions between or among the Company and/or its Restricted Subsidiaries;
(2C) payment of reasonable directors compensation and indemnification costs permitted by the Company’s organizational documents for the benefit of directors, officers and employees, in each case, in the ordinary course of business;
(D) Permitted Investments and or Restricted Payments that are permitted by Section 4.044.10;
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5E) any agreement (including any certificate of designations relating to Capital Stock) as in effect on as of 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) date of hereof 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) or any payment or other transaction contemplated by any of respect than the foregoingoriginal agreement as in effect on the date hereof; and
(6F) Debt permitted the granting or performance of customary registration rights in respect of restricted Equity Interests held or acquired 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 with an unrelated PersonAffiliates.
Appears in 1 contract
Sources: Indenture (Talecris Biotherapeutics Holdings Corp.)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and Borrower shall not permit enter into or consummate any transaction of any kind with any of its Restricted Subsidiaries to, make Affiliates or any payment to, Guarantor or sell, lease, transfer or otherwise dispose of any of its properties their respective Affiliates other than the following payments, provided that no such payment shall be permitted if a Default or assets to, Event of Default has occurred and remains in effect or purchase any property would be caused by 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 foregoing, an "Affiliate Transaction"), unless:
result from such payment: (i) such Affiliate Transaction is on terms thatsalary, 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 by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions 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 agreementsbonus, employee benefit plans stock option and related other compensation and employment arrangements entered into with directors or officers in the ordinary course of business business, (ii) Distributions and all dividends permitted pursuant to Section 7.5, (iii) transactions with Lender or any Affiliate of Lender, (iv) payments permitted under and other transactions contemplated thereby;
(4) any payments pursuant to Investcorp written agreements entered into by and between Borrower and one or more of its Affiliates (whether or not such Persons are Affiliates of the Company) that both (A) for any financial advisoryreflect and constitute transactions on overall terms at least as favorable to Borrower as would be the case in an arm’s-length transaction between unrelated parties of equal bargaining power, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) are subject to such terms and conditions as determined by Lender in its sole discretion; provided, that notwithstanding the foregoing Borrower shall not (Y) enter into or consummate any transaction or agreement pursuant to which it becomes a party to any mortgage, note, indenture or guarantee evidencing any Indebtedness of annual managementany of its Affiliates or otherwise to become responsible or liable, consulting as a guarantor, surety or otherwise, pursuant to agreement for any Indebtedness of any such Affiliate, or (Z) make any payment to any of its Affiliates in excess of $10,000 without the prior written consent of Lender; and advisory fees (v) Permitted Acquisition Payments and related expenses;other payments contemplated under Schedule 7.6.”
(5l) any agreement in 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 Section 7.11 of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) Loan Agreement is hereby amended in its entirety to the extent such Debt is on terms that, taken read 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 with an unrelated Person.follows:
Appears in 1 contract
Sources: Credit and Security Agreement (Titan Global Holdings, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $15.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii2) the Company delivers to the Trustee (a) Trustee, with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 35.0 million, either (a) a resolution of the Board Resolution of Directors of the Company set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i1) above 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 of the Company or (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement, or any similar arrangement (including vacation plans, health and life insurance plans, deferred compensation plans, retirement or savings plans, and stock option, stock ownership and similar plans) entered into by the Company or any of its Restricted Subsidiaries, any payment of compensation (including awards or grants in cash, securities or other payments) for the personal service of officers and employees of the Company or any of its Restricted Subsidiaries and payments of reasonable directors fees, in each case entered into or paid by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns or controls, directly or through a Restricted Subsidiary, an Equity Interest in such Person;
(4) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(5) loans and advances to officers, directors or employees of the Company or any of its Restricted Subsidiaries made in the ordinary course of business; provided that such loans and advances do not exceed $10.0 million in the aggregate at any one time outstanding;
(6) Restricted Payments that are permitted by do not violate Section 4.044.07 hereof and Investments that constitute Permitted Investments;
(37) employment agreements, employee benefit plans Permitted Payments to Parent;
(8) purchases and related arrangements sales of raw materials or inventory in the ordinary course of business on market terms;
(9) transactions between the Company or any Restricted Subsidiary and any joint venture or Unrestricted Subsidiary of the Company entered into in the ordinary course of business and all payments and other business; provided that such transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, 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; and
(10) any transaction arising out of an agreement existing on the date of this Indenture and described in the “Related Party Transactions” section of the Offering Memorandum and any amendment thereto or replacement thereof that, taken as a whole, is no less favorable to the Company than the agreement as in effect on the date of this Indenture.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not cause or permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into any payment totransaction or series of related transactions (including, without limitation, the sale, purchase, exchange or selllease of assets, 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, services) with or for the benefit of, of any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:Company (other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and
(i1) such Affiliate Transaction transaction or series of related transactions is on terms that, taken as a whole, that are no less favorable to the Company or such Restricted Subsidiary, as the relevant Restricted Subsidiary case may be, than those that would have been obtained be available in a comparable transaction by in arm’s-length dealings with a party who is not an Affiliate of the Company or such Restricted Subsidiary with an unrelated Person; andCompany,
(ii) the Company delivers to the Trustee (a2) with respect to any Affiliate Transaction entered into after the first Issue Date transaction or series of related transactions involving aggregate consideration value in excess of $3.0 5.0 million, a Board Resolution ,
(A) the Company delivers an Officers’ Certificate to the Trustee certifying that such Affiliate Transaction transaction or series of related transactions complies with clause (i1) above and that above, and
(B) such Affiliate Transaction transaction or series of related transactions has been approved by a majority of the members Disinterested Directors of the Board of Directors and of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or
(b3) with respect to any Affiliate Transaction transaction or series of related transactions involving aggregate consideration value in excess of $10.0 20.0 million, the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion as is required stating that the transaction or series of related transactions is fair to the fairness to the Holders of Company or such Affiliate Transaction Restricted Subsidiary from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.view;
(b) The provisions of Section 4.07(aHowever, paragraph (a) above shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):apply to:
(1) transactions 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 arrangements with any officer or director of the Company, including under any employment agreement, stock option or stock incentive plans, and related customary indemnification arrangements with officers or directors of the Company, in each case entered into in the ordinary course of business,
(2) the payment of reasonable and customary fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate,
(3) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary made in the ordinary course of business and all payments and other transactions contemplated thereby;in an aggregate amount not to exceed $1.0 million outstanding at any one time,
(4) any payments to Investcorp and its Affiliates (whether Restricted Payments or not such Persons are Affiliates of the Company) (A) for any financial advisoryPermitted Payments made in compliance with Section 4.08 hereof, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;and
(5) any agreement transactions undertaken pursuant to any contracts in existence on the Issue Date (as in effect on the Closing Date Issue Date) and any renewals, replacements or modifications of such contracts (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998pursuant to new transactions or otherwise) 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 foregoing; and
(6) 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 Holders of the relevant Restricted Subsidiary Notes than those that would have been obtained in a comparable transaction with an unrelated Personeffect on the Issue Date.
Appears in 1 contract
Sources: Indenture (Brigham Exploration Co)
Transactions with Affiliates. (a) The Company Except as provided below in this Section 4.11, the Issuer shall ---------------------------- not, and 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, understandingarrangement, loan, advance or guarantee Guarantee with, or for the benefit of, any Affiliate (each such transaction individually or, where identified as part of the foregoinga series with one or more other transactions, an "Affiliate TransactionAFFILIATE TRANSACTION"), unless:
(i1) such the Affiliate Transaction is entered into in good faith and in writing and is on terms that, taken as a whole, that are no less favorable to the Company Issuer or such Subsidiary of the relevant Restricted Subsidiary Issuer than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary of the Issuer with an unrelated Person; and
(ii2) the Company Issuer delivers to the Trustee within ten London Business Days of the relevant Affiliate Transaction:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 millionL2 million (or the Sterling Equivalent), a Board Resolution an Officers' Certificate from two Disinterested Officers of the Issuer certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with subclause (1) of clause (ia) above of this Section 4.11, above;
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of L10 million (or the Sterling Equivalent), a resolution of the Board of Directors of the Issuer set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Issuer, or, if there are no Disinterested Directors, by a majority of all members of the Board of Directors and of the Issuer; and
(bC) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 millionL20 million (or the Sterling Equivalent), an a written opinion as to the fairness to the Holders Issuer or such Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national international standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed subject to be Affiliate Transactions):the foregoing requirements of clause (a) of this Section 4.11, above:
(1) transactions any transaction between or among the Company Issuer and/or its Restricted Non-US Subsidiaries;
(2) Permitted Investments any transaction between or among US Subsidiaries;
(3) any employment, collective bargaining or service agreement entered into by the Issuer or any Subsidiary of the Issuer with any of their respective officers, directors or employees (or any bargaining entities on their behalf) in the ordinary course of business and which is customary in the industry in which the Issuer or such Subsidiary operates;
(4) sales of Equity Interests of the Issuer (other than Disqualified Stock) to Affiliates of the Issuer other than any Subsidiary of the Issuer;
(5) Restricted Payments that are permitted by Section 4.044.04 (Restricted Payments);
(36) employment agreementsPermitted Investments which (other than Permitted Intra-Group Hedging Transactions) are on arm's-length terms;
(7) transactions with Affiliates solely in their capacity as holders of Indebtedness of or Equity Interests in the Issuer or any Subsidiary of the Issuer where such Affiliates are treated no more favorably than holders of such Indebtedness or such Equity Interests generally;
(8) payment of compensation or reimbursement or advances of expenses by the Issuer or any Subsidiary of the Issuer to their respective officers, employee benefit plans and related arrangements entered into directors or employees in the ordinary course of business and all payments and other transactions contemplated therebywhich are customary in the industry in which the Issuer or such Subsidiary operates;
(49) maintenance in the ordinary course of business (and payments required thereby) of benefit programs, or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation and other stock option plans, directors' and officers' indemnification agreements and retirement or saving plans and similar plans, provided that any payments to Investcorp and its Affiliates (whether such plan or not such Persons are Affiliates agreement which is entered into or adopted on or after the Scheme Launch Date shall have been approved by a majority of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect Disinterested Directors of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company Issuer, or, if there are no Disinterested Directors, by a majority of all members of the Board of Directors of the Issuer;
(10) a Permitted Intra-Group Transfer (and payments required thereby);
(11) Permitted Intra-Group Indebtedness (and payments required thereby);
(12) supply, purchase or sale transactions with suppliers or purchasers or sellers of goods or services (other than the Issuer and its Subsidiaries), in good faith each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which, if initially effected on or after the Issue Date, are fair to the Issuer or such Subsidiary of the Issuer or are on terms (taken as a whole) at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, in the reasonable determination of (a) a majority of the Disinterested Directors of the Board of Directors of the Issuer or, if there are no Disinterested Directors, a majority of all members of the Board of Directors of the Issuer or (b) two Disinterested Officers of the Issuer;
(13) the sale or other disposition of inventory and/or related services (and payments related thereto) in the ordinary course of business on an arm's-length basis between or among the Issuer and/or any Non-US Subsidiaries, on the one hand, and any US Subsidiaries, on the other;
(14) payments made pursuant to or in relation to an obligation (a) between or among the Issuer and/or its Subsidiaries or (b) between or among the Issuer and/or its Subsidiaries, on the one hand, and any Person in which the Issuer and/or its Subsidiaries own an Equity Interest (other than any such Person that is an Affiliate of a director or officer of the Issuer or any of its Subsidiaries by virtue of such director or officer owning an Equity Interest in such Person), on the other hand, in each case (1) that exists on the Scheme Launch Date, and (B2) other than an obligation that constitutes Indebtedness;
(15) the provision of administrative, treasury, finance, tax, legal, accounting, human resources, pension and benefits, insurance, risk management, intellectual property, information technology, sales support and other central services to or by the Issuer or one or more Non-US Subsidiaries by or to one or more US Subsidiaries in the ordinary course of business and on an arm's-length basis pursuant to an instrument in writing provided that with respect to any such services provided by any US Subsidiary to the Issuer or a Non-US Subsidiary, services of such type were provided by such US Subsidiary prior to the Issue Date;
(16) allocation of costs between or among the US Subsidiaries, the Non-US Subsidiaries and/or the Issuer relating to (a) tax, information technology, intellectual property, insurance, audit, real estate, statutory compliance and employee benefit and welfare plans (including health and life insurance plans, deferred compensation and other stock option plans and retirement and savings plans) or (b) any products or services provided by Persons other than the Issuer or any of its Subsidiaries to multiple Group Companies, in the case of each of (a) and (b) pursuant to an instrument in writing;
(17) payments made pursuant to or in relation to either (a) trading and other accrued current liabilities existing on the Issue Date or (b) Existing Intercompany Indebtedness; and
(18) any spot foreign exchange transaction between or among the Issuer and/or its Subsidiaries.
(c) The Issuer shall not, and shall not permit any Non-US Subsidiary to, enter into or effect any Affiliate Transaction with, or for the benefit of, any US Subsidiary other than:
(1) an Affiliate Transaction that falls within clause (11), (12) or (14) of annual managementthe definition of Permitted Intra-Group Transfer, consulting and advisory fees payments required thereby;
(2) an Affiliate Transaction that falls within clause (9), (10), (13), (14) or (15) of the definition of Permitted Intra-Group Indebtedness, and related expensespayments required thereby;
(3) an Affiliate Transaction that falls within clause (13), (15), (16), (17) or (18) of clause (b) of this Section 4.11, above;
(4) payments made pursuant to or in relation to an obligation between or among the Issuer and/or its Subsidiaries that exists on the Scheme Launch Date, other than an obligation that constitutes Indebtedness, provided that if the aggregate of all payments made or to be made on or after the Issue Date pursuant to or in relation to any such obligation exceeds L5 million (or the Sterling Equivalent), such obligation shall be set forth in Schedule 6 (Certain Affiliate Transactions) hereto; and
(5) any agreement in effect on an Affiliate Transaction or series of related Affiliate Transactions involving payments, or having a value, of less than L500,000 (or the Closing Date Sterling Equivalent). Any Affiliate Transaction permitted by clause (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998c) 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 of this Section 4.11 shall not disadvantageous be subject to the Holders in any material respectrestrictions or requirements of clause (a) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by this 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 with an unrelated Person4.11.
Appears in 1 contract
Sources: Indenture (Marconi Corp PLC)
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction 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 by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by from an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(a) the entering into, maintaining or performance of any employment contract, collective bargaining agreement, Plan, related trust agreement or any other similar arrangement for or with any employee, officer, consultant or director heretofore or hereafter entered into in the ordinary course of business, (b) The provisions the payment of Section 4.07(acompensation, performance of indemnification or contribution obligations, or an issuance, grant or award of stock, options, or other equity-related interests or other securities to employees, officers, consultant or directors in the ordinary course of business, (c) shall any transaction in the ordinary course of business not prohibit involving more than $250,000 in any one case, or (andd) Management Advances and payments in respect thereof, the following shall not be deemed to be Affiliate Transactions):
(1ii) transactions between or among the Company and/or its Restricted Subsidiaries;
Subsidiaries or any Receivables Entity, (2iii) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
payment of reasonable directors fees, (3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4iv) any payments to Investcorp and its Affiliates sale or other issuance of Equity Interests (whether or not such Persons are Affiliates other than Disqualified Stock) of the Company, (v) (A) for any financial advisory, financing, underwriting Affiliate Transactions in effect or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (date of this Indenture, 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 amendments thereto (so long as any provided that the terms of such amendment is amendments are not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained the terms of such agreement prior to such amendment), (vi) any transaction between the Company or any Restricted Subsidiary, on the one hand, and any Affiliate of the Company engaged primarily in a comparable transaction Permitted Business on the other hand, (A) in the ordinary course of business and consistent with an unrelated Personcommercially reasonable practices or (B) approved by a majority of the Disinterested Directors, (vii) any payment 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, provided that such payment is not greater than that which the Company would be required to pay as a stand-alone taxpayer, (viii) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter that are otherwise permitted by this Indenture; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (viii) to the extent that the terms of any such amendment or new agreement are not otherwise materially adverse to the interests of the Holders, and (ix) Restricted Payments that are permitted by Section 4.07 hereof.
Appears in 1 contract
Sources: Indenture (Asia Global Crossing LTD)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer or any Parent of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) (A) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries and (B) any merger or amalgamation of the Issuer and any direct parent company of Issuer; 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 Issuer and such merger or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and (a) Restricted Payments that are permitted by Section 4.044.04 and (b) Investments under the definition of “Permitted Investments”;
(3iii) employment agreementsthe entering into of any agreement to pay, employee benefit plans and related arrangements entered into the payment of, management, consulting, monitoring and advisory fees and expenses to the Sponsors in an aggregate amount in any fiscal year not to exceed the ordinary course greater of business (x) $6.25 million and all payments (y) 1.25% of Adjusted EBITDA of the Issuer and other transactions contemplated therebyits Restricted Subsidiaries for the immediately preceding fiscal year;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees to, and indemnity provided on behalf of officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary of the Issuer or any Parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) approved by a majority of the Board of Directors of the Company Issuer in good faith or (y) made pursuant to any agreement described under Item 13 “Certain Relationships and (B) of annual managementRelated Transactions, consulting and advisory fees and related expensesDirector Independence” in Intelsat, Ltd.’s Annual Report on Form 10-K for the year ended December 31, 2007;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to employees or consultants that are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date)or any transaction contemplated thereby;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary Subsidiaries of its obligations under the terms of, the Acquisition Documents 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 Issue 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 Holders of the Notes in any material respect than those that would the original agreement as in effect on the Issue Date;
(x) transactions to effect the Transactions and the payment of all fees and expenses related to the Transactions;
(xi) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable judgment of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party and (B) transactions with Joint Ventures or Unrestricted Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a comparable transaction with an unrelated Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Permitted Holder or to any director, officer, employee or consultant of the Issuer or any Parent of the Issuer;
(xiv) 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 the Issuer or any Parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by clause (xii) of Section 4.04(b);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, the provisions of Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any Parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such Parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries; and
(xx) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Intelsat LTD)
Transactions with Affiliates. (a) The Company Borrower 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 (each of the foregoingBorrower (each, an "Affiliate Transaction"), unless:
(i) such the Affiliate Transaction Transaction, taken as a whole with all other related Affiliate Transactions, is on terms thatthat are no less favorable to the Borrower and its Subsidiaries, 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 by the Company Borrower or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company Borrower delivers to the Trustee Administrative Agent (aother 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 entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million10,000,000 but less than or equal to $25,000,000, a resolution of the Board Resolution of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 5.8 and that such Affiliate Transaction has been approved by a majority of the 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 $10.0 million25,000,000, an a positive opinion as to the fairness to the Holders Fair Market Value of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate TransactionsTransactions and, therefore, shall not be subject to the provisions of Section 5.8(a):
(1i) any employment agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(ii) transactions between or among the Company Borrower and/or its Restricted Subsidiariesany of the Guarantors (other than Shared Facilities Arrangements);
(2iii) Permitted Investments and transactions with a Person that is an Affiliate of the Borrower (but not a Subsidiary of the Borrower) solely because the Borrower owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;
(iv) payment of reasonable directors' fees to Persons who are not otherwise Affiliates of the Borrower;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Borrower to Affiliates of the Borrower; provided that such Equity Interests are included in the Collateral;
(vi) Restricted Payments that are permitted by do not violate the provisions of this Agreement as described in Section 4.045.4 (Restricted Payments);
(3vii) employment agreements, employee benefit plans and related arrangements entered into loans or advances to employees in the ordinary course of business and all payments and other transactions contemplated therebynot to exceed $1,000,000 in the aggregate at any one time outstanding;
(4viii) any payments Permitted Tax Payments;
(ix) transactions under or pursuant to Investcorp and its Affiliates (whether or not such Persons are written agreements with Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or Borrower in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors place as of the Company in good faith and (B) date of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services this 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 (or modification thereto, 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 disadvantageous a Major Project Document; provided that no such amendment, modification or waiver alters any such agreement in a manner than is materially adverse to the Holders in any material respect) or any payment or other transaction contemplated by any interests of the foregoing; andLenders;
(6xi) Debt any amendments or modifications of, or waivers under, any Major Project Document, which are permitted by Section 4.03(b)(x5.10(b) to the extent such Debt is (Business Activities) and are on terms that, taken as a whole, that are no less favorable to the Company Borrower or its relevant Subsidiary (as certified to the relevant Restricted Subsidiary Administrative Agent in an Officer's Certificate) than those that would have been obtained in a comparable transaction by the Borrower or such Subsidiary, with an unrelated Person; and
(xii) any agreement to do any of the foregoing.
Appears in 1 contract
Transactions with Affiliates. (a) The Company 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 (each of the foregoingeach, an "“Affiliate Transaction"”), involving aggregate payments or considerations in excess of $5.0 million unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, 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 a Person who is not an unrelated PersonAffiliate; and
(ii) the Company delivers to the Trustee Trustee:
(a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a Board Resolution an Officers’ Certificate certifying that such Affiliate Transaction complies with clause this Section 4.11; and
(ib) above with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of Cinemark Holdings, Inc. and 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 Cinemark Holdings, Inc. and (b) with respect the Company. The following items shall be deemed to any not be Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (Transactions and, the following therefore, shall not be deemed subject to be Affiliate Transactions):the provisions of the prior paragraph:
(1i) any employment, consulting or similar agreement or other compensation arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(2iii) Permitted Investments transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in, or controls, such Person;
(iv) reasonable fees and expenses and compensation paid to, and indemnity provided on behalf of, officers, directors or employees of the Company or any Subsidiary as determined in good faith by the Board of Directors or senior management of the Company;
(v) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(vi) Restricted Payments that are permitted by Section 4.044.07, Permitted Investments (other than pursuant to clause (iii) of such definition) and any transactions excluded from their or any component definitions;
(3vii) employment transactions effected in connection with the Transactions, including the payment of all related fees and expenses;
(viii) transactions pursuant to any contract or agreement described in the Offering Memorandum under the caption “Certain Relationships and Related Party Transactions,” as in effect on the Issue Date, in each case as amended, modified or replaced from time to time so long as the amended, modified or new agreements, employee benefit plans taken as a whole, are not materially less favorable to the Company and related arrangements entered into its Restricted Subsidiaries taken as a whole than those in effect on the Issue Date;
(ix) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case, in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments otherwise in compliance with the terms of this Indenture which are fair to Investcorp the Company and its Affiliates (whether or not such Persons are Affiliates Restricted Subsidiaries, in the reasonable determination of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual managementor the senior management thereof, consulting and advisory fees and related expensesor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(5x) any agreement in effect on the Closing Date (including pledge of Equity Interests of an Unrestricted Subsidiary to its lenders to support 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 Indebtedness of such amendment is not disadvantageous Unrestricted Subsidiary owed to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoingsuch lenders; and
(6xi) Debt permitted by Section 4.03(b)(x) transactions in which the Company or any of its Restricted Subsidiaries delivers to the extent Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such Debt transaction is on fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms that, taken as a whole, are no not materially less favorable to the Company or the relevant such Restricted Subsidiary than those that would have reasonably been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated PersonPerson on an arm’s-length basis.
Appears in 1 contract
Sources: Indenture (Cinemark Holdings, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not permit any of its Restricted Subsidiaries to, make any payment todirectly or indirectly, 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, transaction that is otherwise permitted hereunder with or for the benefit of, any of an Affiliate (each including guarantees and assumptions of the foregoingobligations of an Affiliate) (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration with respect to a single transaction or a series of related transactions, unlessin excess of $25,000,000, except:
(i1) such Affiliate Transaction is to the extent required by Applicable Law;
(2) to the extent required or contemplated by the Material Project Documents or any other Project Document in existence on the Notes Issue Date;
(3) upon terms that, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate, or, if no comparable arm’s-length transaction with a Person that is not an Affiliate is available, then on terms that are determined by the Board of Directors of the Company to be fair in light of all factors considered by said Board of Directors to be pertinent to the Company;
(4) for any Project processing, facilities sharing, use or such Restricted Subsidiary similar agreement with an unrelated PersonAffiliate of the Company; provided, if applicable for the recovery by the Company, that the terms of such agreement provide for the recovery of at least the incremental Operation and Maintenance Expenses associated with operations pursuant to such agreement and the Company has entered into the required Security Documents; and
(ii5) Subordinated Indebtedness between or among the Company delivers Company, any of its Restricted Subsidiaries and/or any of their Affiliates. Prior to the Trustee (a) entering into any agreement with respect to any an Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million50,000,000, the Company shall deliver to the Trustee a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority certificate of an Authorized Officer of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion Company as to the fairness to satisfaction of the Holders applicable condition set forth in clauses (2), (3), (4) and (5) of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingthis Section.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of clause (a) of this Section:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) employment agreementstransactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated therebydirectly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) any payments payment of reasonable directors’ fees to Investcorp and its Affiliates (whether or Persons who are not such Persons are otherwise Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date issuance of Equity Interests (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998other than Disqualified Stock) between the Berkshire Companies Limited Partnership and of the Company to Affiliates of the Company;
(6) any (A) Permitted Investments or (B) Restricted Payments that do not violate Section 4.06;
(7) Permitted Payments to Parent;
(8) any contracts, agreements or understandings existing as of the Notes Issue Date and the Brevard lease agreement) any amendments to or any amendment thereto (replacements of such contracts, agreements or understandings so long as any such amendment or replacement is not more disadvantageous to the Company or to the Holders in any material respect) or any payment or other transaction contemplated by any of respect than the foregoingoriginal agreement as in effect on the Notes Issue Date; and
(69) Debt permitted subject to Section 4.08(a)(1), any assignment, novation or transfer of any Train Five LNG Sales Agreement, any Train Six LNG Sales Agreement or the CMI LNG Sale and Purchase Agreement 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 to an Affiliate of the Company and any related agreements; provided, however, that if the Company incurs Expansion Debt in respect of Train Five or Train Six pursuant, as applicable, to clause (a) of the relevant Restricted Subsidiary than those that would have been obtained definition of Permitted Indebtedness, any such assignment, novation or transfer of any Train Five LNG Sales Agreement or any Train Six LNG Sales Agreement, as applicable, and any related agreements shall constitute an Affiliate Transaction unless such assignment, novation or transfer qualifies under any of the other listed exceptions in a comparable transaction with an unrelated Personthis section.”
Appears in 1 contract
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 shall ---------------------------- not, and shall 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 (each consolidation of the foregoingBorrower and Holdings or any other direct parent company of the Borrower, an "Affiliate Transaction")provided that such parent company shall have no material liabilities and no material assets other than cash, unless: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,
(ib) such Affiliate Transaction is on terms that, taken substantially 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 by the Company 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 unrelated Person; andAffiliate,
(iic) 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 less favorable to Holdings 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 was not an Affiliate,
(e) the Company delivers entering into of any agreement (and any amendment or modification of any such agreement) to pay, and the payment of, annual management, consulting, monitoring and advisory fees to the Trustee Investors in an aggregate amount in any fiscal year not to exceed the greater of (ax) $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 Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.Restricted Subsidiaries,
(bf) The provisions of Restricted Payments permitted under Section 4.07(a) shall not prohibit 7.06 (and, the following shall not be deemed to be Affiliate Transactions):other than 7.06(d)),
(1g) transactions [reserved],
(h) employment and severance arrangements between or among the Company and/or Holdings and its Restricted Subsidiaries;
(2) Permitted Investments Subsidiaries and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans their respective officers and related arrangements entered into 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 payments and other transactions 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 Closing Date) or any transaction contemplated thereby;,
(4k) payments by Holdings or any payments of its Restricted Subsidiaries to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the Board of Directors of the Company Borrower or Holdings or any other direct or indirect parent of the Borrower in good faith faith,
(l) the entering into of any Tax Sharing Agreement and any payments permitted thereunder to the extent by Section 7.06(h)(ii),
(Bm) the issuance of Equity Interests (other than Disqualified Equity Interests) of annual managementthe Borrower or Holdings to the Investors or to Holdings or any other direct or indirect parent of the Borrower or Holdings or to any director, consulting officer, employee or consultant thereof and advisory fees and related expenses;any contribution to the capital of Holdings,
(5n) (i) 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 Agreement, which are fair to Holdings and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or 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 ordinary course of business,
(o) payments for back office shared services that are paid at cost (subject to any higher transfer pricing required in certain foreign operations) pursuant to contractual joint venture arrangements pursuant to which the Borrower or any of its Restricted Subsidiaries are party in the ordinary course of business,
(p) the existence of, or the performance by the Borrower or any Restricted Subsidiaries of its obligations under the terms of any stockholders agreement in effect on (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of 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 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 amendment is not disadvantageous to existing agreement or under any similar agreement entered into after the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt Closing Date shall only be permitted by Section 4.03(b)(xthis clause (p) to the extent that the terms of any such Debt is on terms thatexisting agreement together with all amendments thereto, taken as a whole, or new agreement are no less favorable not otherwise more disadvantageous to the Company Lenders in any material respect than the original agreement as in effect on the Closing Date,
(q) transactions between the Borrower or any Restricted Subsidiaries and any Person that is an Affiliate solely due to the relevant Restricted Subsidiary than those fact that would have been obtained in a comparable transaction with an unrelated Persondirector of such Person is also a director of the Borrower or Holdings or any other direct or indirect parent of the Borrower; provided, however, that such director abstains from voting as a director of the Borrower or such direct or indirect parent of the Borrower, as the case may be, on any matter involving such other Person and (r) pledges of Equity Interests of Unrestricted Subsidiaries.
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- Holdings will not, and shall 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 Holdings (each of the foregoingeach, an "Affiliate Transaction"), involving aggregate consideration in excess of $1.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Holdings or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Holdings or such Restricted Subsidiary with an unrelated Person; and
(ii2) the Company Holdings delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors of the Company certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members disinterested members, if any, of the Board of Directors and of the Company; and
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 25.0 million, an opinion as to the fairness to the Holders Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business or consistent with past practice and payments pursuant thereto;
(2) transactions (including a merger) between or among the Company Holdings and/or any of its Restricted Subsidiaries;
(23) Permitted Investments and transactions with a Person (other than an Unrestricted Subsidiary of Holdings) that is an Affiliate of Holdings solely because Holdings owns, directly or through a Restricted Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(34) employment agreementspayment of reasonable fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of Holdings or any of its Restricted Subsidiaries or any direct or indirect parent company of Holdings;
(5) any issuance of Equity Interests (other than Disqualified Stock) of Holdings to Affiliates of Holdings or to any director, officer, employee benefit plans or consultant of Holdings or any direct or indirect parent company of Holdings, and the granting and performance of registration rights;
(6) Restricted Payments and Investments that do not violate Section 4.07 hereof;
(7) the entering into any agreement to pay, and the payment of, customary annual management, consulting, monitoring and advisory fees to the Equity Investors in an amount not to exceed in any four quarter period the greater of (x) $5.0 million and (y) 2.0% of Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such period and related arrangements expenses, or the payment of, or in respect of, an Accelerated Monitoring Fee Payment in an amount not to exceed $18.0 million upon an initial public offering of Holdings or the Company or any of their parent entities;
(8) loans or advances to employees or consultants in the ordinary course of business or consistent with past practice not to exceed $2.5 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 Holdings 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 Holdings 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 Holdings 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 Holdings 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 taken as a whole 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 payments the costs and other transactions contemplated therebybenefits associated with such transactions), materially no less favorable to Holdings or its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person, in the reasonable determination of the Board of Directors of Holdings 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;
(413) (x) guarantees of performance by Holdings 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 a Person in its capacity as a holder of Indebtedness or Capital Stock of Holdings or any Restricted Subsidiary where such Person is treated no more favorably than the holders of Indebtedness or Capital Stock of Holdings or any Restricted Subsidiary;
(15) transactions effected pursuant to agreements in effect on the issue date and any amendment, modification or replacement of such agreement (so long as such amendment or replacement is not materially more disadvantageous to the Holders of the Notes, taken as a whole); and
(16) payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) Equity Investors made for any financial advisory, financing, underwriting financing 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 and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated PersonDirectors.
Appears in 1 contract
Transactions with Affiliates. (a) The Company 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 Company involving aggregate payments of consideration in excess of $10.0 million (each of the foregoing, an "“Affiliate Transaction"”), unless:
(i1) such Affiliate Transaction is on terms that, taken as a whole, 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; and
(ii2) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after a resolution of the first Issue Date involving aggregate consideration Board of Directors of the Company set forth in excess of $3.0 million, a Board Resolution an officers’ certificate certifying that such the Affiliate Transaction complies with clause (i1) above and that such the 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 involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to Guarantor. Notwithstanding the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (andforegoing, the following items shall not be deemed to be Affiliate Transactions)::
(1) any employment arrangements with any executive officer of the Company or a Restricted Subsidiary that is entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with compensation arrangements of similarly situated executive officers at comparable companies engaged in Permitted Businesses;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) Permitted Investments payment of reasonable and customary directors fees;
(4) Restricted Payments that are permitted by the provisions of Section 4.04;
(3) employment agreements, employee benefit plans 4.07 or are permitted pursuant to the definition of Permitted Investments and related arrangements entered into loans or advances to employees made in the ordinary course of business and all payments and other transactions contemplated therebyconsistent with past practices;
(45) any payments to Investcorp and its Affiliates the issuance or sale of Equity Interests (whether or not such Persons are Affiliates other than Disqualified Stock) of the Company;
(6) (A) payments of customary fees by the Company or any of its Restricted Subsidiaries to any independent investment bank or Affiliate of an independent investment bank made for any corporate advisory services or financial advisory, financing, underwriting or placement services or in respect of other investment banking activitiesactivities including, including without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the Company’s Board of Directors in good faith;
(7) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Restricted Subsidiaries and otherwise in good faith and (B) compliance with the terms of annual management, consulting and advisory fees and related expenses;
(5) any agreement this Indenture; provided that in 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 reasonable determination of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent Company, such Debt is transactions are on terms that, taken as a whole, 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; and
(8) any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date).
Appears in 1 contract
Sources: Indenture (Sba Communications Corp)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of US$20.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, (taken as a whole, ) that are no not materially 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 a Person other than an unrelated PersonAffiliate of the Company on an arm’s-length basis or, if in the good faith judgment of the 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 such Restricted Subsidiary from a financial point of view; and
(ii2) the Company delivers to the Trustee (a) Trustee, with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $3.0 US$50.0 million, a Board Resolution an Officer’s Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with clause (i) above this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors and of the Company.
(b) with respect The following items will not be deemed to any be Affiliate Transaction involving aggregate consideration in excess of $10.0 millionTransactions and, an opinion as therefore, will not be subject to the fairness provisions of Section 4.11(a) hereof:
(1) any employment agreement, customary benefit program or arrangement, equity award, equity option or equity appreciation agreement or plan with or for the benefit of officers, directors or employees of the Company or any of its Restricted Subsidiaries, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries, including between or among its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns (directly or indirectly) an Equity Interest in such Person;
(4) transactions between the Company or any Restricted Subsidiary of the Company and any Person, a director of which is also a director of the Company and such director is the sole cause for such Person to be deemed an Affiliate of the Company or such Restricted Subsidiary; provided that such director shall abstain from voting as a director of the Company on any matter involving such other Person;
(5) customary compensation, indemnification and other benefits made available to officers, directors, employees or consultants of the Company or a Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;
(6) issuances or sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company and the granting of registration and other customary rights in connection therewith;
(7) Restricted Payments that are permitted by the provisions of Section 4.07 and Permitted Investments;
(8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business that, in the good faith judgment of the executive officers of the Company, are fair to the Holders Company and its Restricted Subsidiaries, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(9) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing in the United States or Canada stating that such Affiliate Transaction transaction is fair to the Company or such Restricted Subsidiary from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions that such transaction meets the requirements of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its Restricted Subsidiaries4.11(a)(1);
(210) Permitted Investments and Restricted Payments that are permitted loans, advances or guarantees provided to or reimbursement of expenses incurred by Section 4.04;
(3) employment agreementsemployees, employee benefit plans and related arrangements entered into officers, directors, consultants or independent contracts for bona fide business purposes or in the ordinary course of business and all payments and other transactions contemplated therebypermitted under clause (11) of the definition of Permitted Investments;
(411) (i) guarantees by the Company or any payments to Investcorp and of its Affiliates (whether or not such Persons are Affiliates Restricted Subsidiaries of performance of obligations of the Company’s Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness and (ii) (A) 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 approved pledges by the Board Company or any of Directors its Restricted Subsidiaries of (or any guarantee by the Company or any of its Restricted Subsidiaries limited in recourse solely to) Equity Interests in the Company’s Unrestricted Subsidiaries for the benefit of lenders or other creditors of such Unrestricted Subsidiaries;
(12) pledges and granting of Liens by the Company or any Restricted Subsidiary of, and Guarantees by the Company or any Restricted Subsidiary limited in recourse solely to, Capital Stock in Unrestricted Subsidiaries and Joint Ventures solely for the purposes of securing Non-Recourse Debt, and incurrences of liabilities with respect to Customary Recourse Exceptions;
(13) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Equity Interests of the Company in good faith and (B) or any Restricted Subsidiary if such Person is treated no more favorably than the other similarly situated holders of annual management, consulting and advisory fees and related expenses;Indebtedness or Equity Interests of the Company or such Restricted Subsidiary; and
(514) any agreement entry into, and transactions effected in accordance with the terms of, the agreements described in this offering memorandum or that are described in filings under the Company’s profile on SEDAR or made by Exterran on ▇▇▇▇▇ that are incorporated by reference in this offering memorandum, in each case as such agreements are in effect on the Closing Date (including the Recapitalization AgreementIssue Date, the Services Agreement (as amended on April 15and any amendment, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreement) renewal, extension or replacement of any amendment thereto (so long as of such agreements if any such amendment amendment, renewal, extension or replacement agreement is not disadvantageous materially less advantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatCompany, taken as a whole, are no less favorable to than the Company agreement so amended, renewed, extended or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated Person.replaced
Appears in 1 contract
Sources: Indenture (Enerflex Ltd.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall 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 (each of the foregoingCompany (each, an "“Affiliate Transaction"”), involving aggregate consideration in excess of $5.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, 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 PersonPerson or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and
(ii2) the Company delivers to the Trustee (a) Trustee, with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 40.0 million, a resolution of the Board Resolution of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliated Transactions complies with clause (i) above this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 millionthe Company, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingif any.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):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, officer or director indemnification, compensation or severance agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(23) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(6) Permitted Investments (other than under clauses (3), (9) or (13) of the definition thereof) and Restricted Payments that are permitted by do not violate the provisions of Section 4.044.07 hereof;
(37) employment agreementsPermitted Payments to the Parent and Permitted Tax Distributions;
(8) transactions effected in accordance with the terms of the agreements of the Company or any Restricted Subsidiary described in the Company’s proxy statement filed with the Commission on April 22, employee benefit plans 2014 under the heading “Certain Relationships and Related Party Transactions” and in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014, as such agreements are in effect on the date of this Indenture, and any amendment or replacement of any of such agreements so long as such amendment or replacement agreement is not materially less advantageous to the Company, taken as a whole, than the agreement so amended or replaced;
(9) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business;
(10) transactions between the Company or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Company or any direct or indirect parent company of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company or any direct or indirect parent company of the Company, as the case may be, on any transaction with such other Person;
(11) in the case of contracts for exploring for, producing, marketing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related arrangements or ancillary thereto, or other operational contracts, any such contracts entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
otherwise in compliance with the terms of this Indenture (4a) any payments which are fair to Investcorp the Company and its Affiliates (whether or not such Persons are Affiliates Restricted Subsidiaries, in the good faith determination of the Company) (A) 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 approved by the Board of Directors of the Company in good faith 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 (Bb) with respect to which the Company has complied with clause (2) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoingSection 4.11(a); and
(612) Debt permitted by Section 4.03(b)(x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the extent Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such Debt transaction is on terms that, taken as a whole, are no less favorable fair to the Company or the relevant such Restricted Subsidiary than those from a financial point of view or that would have been obtained in a comparable such transaction with an unrelated Personmeets the requirements of clause (1) of Section 4.11(a).
Appears in 1 contract
Sources: Indenture (Jones Energy, Inc.)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and shall not permit Sell or transfer any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties property or assets to, or purchase or acquire any property or assets from, or enter into or make or amend otherwise engage in any transaction, contract, agreement, understanding, loan, advance or guarantee other transaction with, any of its Affiliates, unless such transaction is (x) otherwise expressly permitted (or for the benefit of, any required) under this Agreement or (y) upon terms no less favorable to such Borrower than would be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate (as confirmed in a letter addressed to the board of directors (or equivalent governing body) of such Borrower from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is (i) in the foregoing, an "Affiliate Transaction"good faith determination of such Borrower qualified to render such letter and (ii) reasonably satisfactory to the Administrative Agent), unless; provided that this Section 6.07 shall not apply to:
(a) the indemnification of directors (or persons holding similar positions for non-corporate entities) of any Borrower in accordance with customary practice; (b) licenses and sublicenses in the ordinary course of business; (c) any payments consisting of Delayed Draw Loans made for the purposes of paying invoices from the Parent to any Borrower delivered to the Administrative Agent pursuant to Section 4.02(j); (d) any transaction between the Borrowers otherwise permitted under this Article VI; (e) any transaction contemplated as of the date hereof by (i) the Intercompany Services Agreements or (ii) the Intercompany Revenue Agreement, in each case, with such Affiliate Transaction is on terms that, taken as a whole, modifications that are no less favorable to the Company or the relevant Restricted Subsidiary applicable Borrower than those that would have been be obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an unrelated PersonAffiliate; and
and (iif) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority transaction contemplated as of the members of date hereof between the Board of Directors Co-Borrower and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 millionCoreWeave Compute Acquisition Co. VI, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions 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 contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including LLC in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in effect on the Closing Date (including the Recapitalization Dell Lease 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 with such amendment is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, modifications that are no less favorable to the Company or the relevant Restricted Subsidiary Co-Borrower than those that would have been be obtained in a comparable arm’s- length transaction with a Person that is not an unrelated PersonAffiliate.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Transactions with Affiliates. (a) The Company Venture 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 Affiliates (each of the foregoing, an "“Affiliate Transaction"”), unless:
: (ia) such Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Partnership or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Venture or such Restricted Subsidiary with an unrelated Person; andand (b) the Venture delivers to each Partner that is not an Affiliate of the party to the Affiliate Transaction:
(ii) the Company delivers to the Trustee (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 million1,000,000, a Board Resolution certifying certificate of the Managing Partner to the effect that such Affiliate Transaction complies with clause (i) above this Section 2.13 and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and Managing Partner; and
(bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million5,000,000, an opinion as to the fairness to the Holders Partnership of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting 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 provisions purchases of Section 4.07(a) shall not prohibit (and, goods and services in the following shall not 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):
obtained from an unrelated third party and in an amount not to exceed $1,000,000 per year ; (1c) transactions between or among the Company and/or Venture and any of its Restricted Subsidiaries;
; (2d) Permitted Investments and Restricted Payments that are Additional Capital Contributions or distributions permitted by Section 4.04;
the terms of this Agreement; and (3e) employment agreementsreasonable fees and compensation (including bonuses, employee benefit retirement plans and related arrangements entered into 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 all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 with an unrelated Personbusiness.
Appears in 1 contract
Transactions with Affiliates. (a) The Company 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 properties, assets or assets securities 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 foregoingeach, an "Affiliate Transaction"), unless:
(ia) such Affiliate Transaction is on terms that, taken as a whole, 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 a Person that is not an unrelated PersonAffiliate; and
(iib) the Company delivers to the Trustee Trustee:
(ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and is in the best interests of the Company or such Restricted Subsidiary; and
(bii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) . The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate Transactions):Transactions and, therefore, shall not be subject to the provisions of the prior paragraph:
(1a) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees, agents or consultants of the Company or any of its Restricted Subsidiaries as determined in good faith by the Board of Directors or senior management of the Company;
(b) transactions between or among the Company and/or its and any of the Company's Restricted Subsidiaries;
(2c) Permitted Investments and any sale or other issuance of Equity Interests (other than Disqualified Stock) of the Company;
(d) Restricted Payments that are permitted by the provisions of Section 4.044.07 or by clauses (1), (3), (7), (8) or (9) of the definition of "Permitted Investments";
(3) employment agreements, employee benefit plans and related arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5e) any agreement or arrangement as in effect on the Closing Issue 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 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 Holders Company or its Restricted Subsidiaries, as the case may be, in any material respectrespect than the original agreement as in effect on the Issue Date;
(f) transactions involving aggregate consideration of up to $25.0 million between the Company or its Restricted Subsidiaries and Ledcor Inc. or any payment or of its Subsidiaries (other transaction contemplated than the Company and its Restricted Subsidiaries); provided, that the Company delivers to the Trustee a Board Resolution stating that such Affiliate Transaction has been approved by any a majority of the foregoingdisinterested members of the Board of Directors; and
(6g) Debt permitted by Section 4.03(b)(x) transactions with Urbanlink pertaining to the extent such Debt is on terms thatCanadian telecommunications arrangements consistent with the description in the Offering Memorandum under "Related Party Transactions -- Transactions with Ledcor -- Canadian telecommunications arrangements," and any contracts, taken as a whole, are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained transactions and arrangements in a comparable transaction with an unrelated Personconnection therewith.
Appears in 1 contract
Sources: Indenture (360networks Inc)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer lease or otherwise dispose of transfer any of its properties property or assets to, or purchase purchase, lease or otherwise acquire any property or assets from, or enter into or make or amend otherwise engage in any transaction, contract, agreement, understanding, loan, advance or guarantee other transactions with, or for the benefit ofany of its Affiliates, any Affiliate except (each of the foregoing, an "Affiliate Transaction"), unless:
(ia) such Affiliate Transaction is transactions on terms that, taken as a whole, are no and conditions not materially less favorable to the Company or the relevant Restricted such Subsidiary than those could be obtained on an arm’s-length basis from a Person that would have been obtained in is not an Affiliate for a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 milliontransaction, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or and its Restricted Subsidiaries (or an entity that becomes a Subsidiary of the Company as a result of such transaction) (or any combination thereof), (c) the payment of customary fees to directors of the Company or any of its Subsidiaries;
, and customary compensation, reasonable out-of-pocket expense reimbursement and indemnification (2including the provision of directors and officers insurance) Permitted Investments of, and Restricted Payments that are permitted by Section 4.04;
(3) other employment agreementsagreements and arrangements, employee benefit plans and related arrangements stock incentive plans paid to, future, present or past directors, officers, managers and employees of the Company or any of its Subsidiaries, (d) transactions undertaken in good faith for the purpose of improving the overall tax efficiency of the Company and its Subsidiaries, (e) loans, advances and other transactions to the extent permitted by the terms of this Agreement, including without limitation any Restricted Payment permitted by Section 6.06 and transactions permitted by Section 6.03, (f) issuances of Equity Interests to Affiliates and the registration rights associated therewith, (g) any Collaboration Arrangement or any other license, sublicense, lease or sublease (i) in existence on the Effective Date (together with any amendments, restatements, extensions, replacements or other modifications thereto that are not materially adverse to the interests of the Lenders in their capacities as such), (ii) in the ordinary course of business or (iii) substantially consistent with past practices, (h) transactions with Affiliates that are Disclosed Matters, (i) transactions pursuant to agreements in effect on the Effective Date (together with any amendments, restatements, extensions, replacements or other modifications thereto that are not materially adverse to the interests of the Lenders in their capacities as such), (j) transactions with joint ventures for the purchase or sale of property or other assets and services entered into in the ordinary course of business and all payments and other investments in joint ventures, (k) transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board a majority of Disinterested Directors of the Company or of the applicable Subsidiary in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5l) any agreement in effect on transactions or series of related transactions with respect to which the Closing Date (including the Recapitalization Agreementaggregate consideration paid, the Services Agreement (as amended on April 15or fair market value of property Disposed of, 1998) between the Berkshire Companies Limited Partnership and by the Company and the Brevard lease agreement) or any amendment thereto (so long as any such amendment its Subsidiaries is not disadvantageous to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoing; and
(6) 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 with an unrelated Person$2,000,000.
Appears in 1 contract
Transactions with Affiliates. (a) The Immediately following the consummation of the Exchange Offers, the Company shall ---------------------------- not, and shall not permit conduct 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, business or enter into any transactions or make series of related transactions with (i) any affiliate (other than the Company's Subsidiaries) or amend (ii) a legal or beneficial owner of 10% or more of the voting power of the Voting Stock or an affiliate of such owner (other than the Company's Subsidiaries), other than any transactiontransaction (A) contemplated by the Fidelity Support Agreement or pursuant to agreements or arrangements entered into prior to the date of the Fidelity Support Agreement and disclosed to Fidelity, contract, agreement, understanding, loan, advance (B) described in the Company's proxy statement or guarantee withother periodic public filings with the Securities and Exchange Commission on or prior to the date hereof, or for the benefit of, any Affiliate (C) specifically permitted by Section 4.08 of each of the foregoingindentures of Products Corporation, an as supplemented, amended or otherwise modified from time to time, pursuant to which the Exchange Notes were issued and are governed (the "Affiliate TransactionIndentures")) (for purposes of this Section 2.1 only, unless:
(i) such Affiliate Transaction is on terms thatany reference to Products Corporation in Section 4.08 of the Indentures, taken as a wholewith respect to transactions with affiliates, are no less favorable shall refer 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; and
Company) unless, (ii) the Company delivers to the Trustee (ay) with respect to any Affiliate Transaction entered into after a transaction or series of related transactions, other than the first Issue Date purchase or sale of inventory in the ordinary course of business, involving aggregate payments or other consideration in excess of $3.0 5.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction transaction or series of related transactions has been approved by a majority all of the members Independent Directors of the Board of Directors Directors, and (bz) with respect to any Affiliate Transaction a transaction or series of related transactions, other than the purchase or sale of inventory in the ordinary course of business, involving aggregate payments or other consideration in excess of $10.0 20.0 million, an such transaction or series of related transactions has been determined, in the written opinion as of a nationally recognized, investment banking firm, to the fairness to the Holders of such Affiliate Transaction be fair, from a financial point of view issued view, to the Company. As used in this Agreement the term Subsidiary shall mean any corporation, limited liability company or other person of which shares of stock or other ownership interests having a majority of the general voting power in electing the board of directors thereof or other persons performing a similar function are, at the time of which any determination is being made, owned by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or either directly or through its Restricted Subsidiaries;
(2) Permitted Investments Subsidiaries and Restricted Payments that are permitted by Section 4.04;
(3) employment agreements, employee benefit plans and related arrangements entered into any partnership in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 any Subsidiary than those that would have been obtained in is a comparable transaction with an unrelated Persongeneral partner.
Appears in 1 contract
Transactions with Affiliates. (a) The Company QD LLC shall ---------------------------- not, and shall not permit any of its the 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 QD LLC (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company QD LLC or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company QD LLC or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 15.0 million, QD LLC delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of QD LLC, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among QD LLC and/or any of the Company and/or its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of QD LLC and any direct parent of QD LLC; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of QD LLC and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreementsthe payment of reasonable and customary fees and reimbursement of expenses paid to, employee benefit plans and related arrangements entered into in the ordinary course indemnity provided on behalf of, officers, directors, employees or consultants of business and all payments and other transactions contemplated therebyQD LLC, any Restricted Subsidiary or any direct or indirect parent of QD LLC;
(4iv) transactions in which QD LLC 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 QD LLC or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(v) payments or loans (or cancellation of loans) to Investcorp and its Affiliates (whether officers, directors, employees or not such Persons are Affiliates of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, consultants which payments are approved by a majority of the Board of Directors of the Company QD LLC in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by QD LLC;
(vii) the existence of, or the relevant performance by QD LLC or any Restricted Subsidiary 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 QD LLC or any Restricted Subsidiary 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 Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Issue Date;
(viii) the execution of the Transactions, and the payment of all fees and expenses related to the Transactions;
(ix) (A) transactions with 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, which are fair to QD LLC and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of QD LLC, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(x) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xi) the issuance of Equity Interests (other than Disqualified Stock) of QD LLC to any Person;
(xii) 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 QD LLC or any direct or indirect parent of QD LLC or of a Restricted Subsidiary, as appropriate, in good faith;
(xiii) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xiv) any contribution to the capital of QD LLC;
(xv) transactions permitted by, and complying with, Section 5.01;
(xvi) transactions between QD LLC or any Restricted Subsidiary and any Person, a director of which is also a director of QD LLC or any direct or indirect parent of QD LLC; provided, however, that such director abstains from voting as a director of QD LLC or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xix) any employment agreements entered into by QD LLC or any Restricted Subsidiary in the ordinary course of business; and
(xx) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of QD LLC in an unrelated PersonOfficer’s Certificate) for the purpose of improving the consolidated tax efficiency of QD LLC and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture.
Appears in 1 contract
Sources: Indenture (Quality Distribution Inc)
Transactions with Affiliates. (a) The Company 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 (each of the foregoingCompany involving aggregate consideration in excess of $250.0 million (each, an "“Affiliate Transaction"”), unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary of the Company than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee Trustee:
(a1) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 250.0 million, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (ithis Section 7.8(a) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and of the Company; or
(b2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 500.0 million, an opinion as to the fairness to the Holders Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate TransactionsTransactions and, therefore, shall not be subject to the provisions of Section 7.8(a):
(1i) any employment agreement, severance agreement, employee benefit plan, retirement or bonus plans, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the Ordinary Course of Business or approved in good faith by the Board of Directors of the Company and payments pursuant thereto;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries (other than transactions among Guarantors (and, if the Parent Pledge is granted, the Company) or their Subsidiaries, on the one hand, and non-Guarantors, on the other hand);
(2iii) 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 payment of business and all payments and other transactions contemplated thereby;
(4) any payments reasonable directors’ fees to Investcorp and its Affiliates (whether or not such Persons are Affiliates members of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesCompany;
(5iv) any agreement issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company (other than Guarantors and their Subsidiaries);
(v) Restricted Payments that do not violate Section 7.1 hereof;
(vi) 23A Transactions and other transactions in effect connection with or related to Bank Activities or which are otherwise required by applicable law or regulation;
(vii) transactions in the Ordinary Course of Business, including transactions relating to ordinary course cash management and working capital funding arrangements, tax arrangements, and provision of overhead expenses, securitizations, conduit facilities and other similar transactions, and transactions related to Portfolio Assets that do not constitute Asset Sales;
(viii) transactions involving (other than Investments in Indebtedness or Asset Sales to or from) Care Investment Trust, Inc.;
(ix) any accommodation lease arrangements arising from cross-border leasing transactions with a Subsidiary of the Company entered into in the Ordinary Course of Business;
(x) ordinary course transactions between an owner trust, its Owner-Trustee and the beneficiary of the owner trust, solely to the extent such transactions relate to the operation and governance of the owner trust;
(xi) transactions with Affiliates in connection with workouts, foreclosures or in connection with the compromise, resolution or full or partial satisfaction of obligations of trade creditors or customers in the Ordinary Course of Business;
(xii) (1) customary subordinated loan transactions (whether term or revolving) with finance Subsidiaries that are Special Purpose Entities or other Subsidiaries of the Company in connection with securitizations, conduits or like transactions related to Ordinary Course of Business activities to enable such Special Purpose Entities or such other Subsidiaries of the Company to acquire Portfolio Assets to be transferred to such entities under such transactions; and (2) customary limited guaranties of obligations of finance Subsidiaries that are Special Purpose Entities or other Subsidiaries of the Company in connection with securitizations, conduits or like transactions related to Ordinary Course of Business activities (including, without limitation, to the extent applicable, performance guaranties (other than payment obligations with respect to the underlying Indebtedness that exceed 10% of the amount of the Indebtedness) and the guaranties consistent with the delivery of a “true sale"/“absolute transfer” opinion with respect to any transfer by the Company or any Restricted Subsidiary of the Company to the applicable financing Special Purpose Entity, Restricted Subsidiary of the Company or other Subsidiary of the Company;
(xiii) any transactions among Subsidiary Guarantors or any transaction with subsidiaries in connection with the refunding, refinancing or replacement of Refinancing Eligible Debt with borrowings under the Credit Agreement;
(xiv) Investments in CIT China in an aggregate amount not to exceed $15,000,000 at any time outstanding and Investments arising from the granting of Liens on the Closing Date (including the Recapitalization AgreementCash and Cash Equivalents of, and related Rate Management Transactions by, the Services Agreement Company or any Restricted Subsidiary to secure obligations of CIT China under the CIT China Facility to the extent such Liens are permitted under clause (30) of the definition of Permitted Liens;
(xv) those certain support agreements by CIT Leasing in favor of the Issuer dated as of July 5, 2005 and November 1, 2006 (in each case as amended or otherwise modified 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 prior to the Holders in any material respect) or any payment or other transaction contemplated by any of the foregoingIssue Date); and
(6xvi) Debt permitted by Section 4.03(b)(x) the CIT Funding Security Agreements (in each case as amended or otherwise modified on or prior 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 with an unrelated PersonIssue Date).
Appears in 1 contract
Transactions with Affiliates. (a) The Company 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 (each of the foregoingeach, an "Affiliate Transaction"), unless:
unless (ia) such Affiliate Transaction is on terms that, taken as a whole, 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; and
Person and (iib) the Company delivers to the Trustee (ai) with respect to any Affiliate Transaction entered into after the first Issue Date or series of interrelated or contractually related Affiliate Transactions involving aggregate consideration in excess of $3.0 5.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and (bii) with respect to any Affiliate Transaction or series of interrelated or contractually related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) . The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate Transactions):
Transactions and, therefore, shall not be subject to the provisions of the prior paragraph: (1i) any employment agreement, compensation or employee benefit arrangements, incentive arrangements and customary director fees (including grants of stock, stock options or other Equity Interests) entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary; (ii) transactions between or among the Company and/or its Restricted Subsidiaries;
; (2iii) Permitted Investments and transactions with a Person that is an Affiliate of ▇▇▇▇▇▇▇-▇▇▇▇▇ Group or the Company solely because ▇▇▇▇▇▇▇-▇▇▇▇▇ Group or the Company owns an Equity Interest in such Person; (iv) payment of reasonable directors fees to Persons who are not otherwise Affiliates of ▇▇▇▇▇▇▇-▇▇▇▇▇ Group or the Company; (v) Restricted Payments that are permitted by Section 4.04;
4.07 hereof; and (3vi) employment agreementscustomary loans, employee benefit plans advances, fees and related arrangements entered into in the ordinary course of business compensation paid to, and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors consultants of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 its Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated PersonSubsidiaries.
Appears in 1 contract
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $10.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 30.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (ia) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a3.8(a) shall will not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) (a) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and (b) any merger or consolidation of the Issuer and Holdings or any other direct parent of the Issuer, 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 Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2a) Restricted Payments permitted by this Indenture and (b) Permitted Investments and Restricted Payments that are permitted by Section 4.04Investments;
(3iii) any employment agreements, employee benefit plans and related arrangements agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business and all the payment of reasonable and customary fees and reimbursements paid to, and indemnity and similar arrangements provided on behalf of, officers, directors, employees or consultants of the Issuer or any Restricted Subsidiary or Holdings or (to the extent relating to the business of the Issuer and its Subsidiaries) any other direct or indirect parent of the Issuer;
(iv) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (a) of the preceding paragraph;
(v) payments and or loans (or cancellation of loans, advances or guarantees) or advances to employees or consultants or guarantees in respect thereof for bona fide business purposes in the ordinary course of business;
(vi) any agreement as in effect as of the Issue Date (other transactions than the Management Agreement) or as thereafter amended, supplemented or replaced (so long as not more disadvantageous to the Holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby;
(4vii) the Management Agreement as in effect as of the Issue Date or as thereafter amended, supplemented or replaced (so long as not more disadvantageous to the Holders of the Notes in any material respect than the Management Agreement as in effect on the Issue Date) or any transaction or payments (including reimbursement of out-of-pocket expenses) contemplated thereby;
(viii) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, the Merger Agreement, any stockholders or similar agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any amendment thereto or similar transactions, arrangements or 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 transaction, arrangement or agreement or under any similar transaction, arrangement or agreement entered into after the Issue Date shall only be permitted by this clause (viii) to the extent that the terms of any such existing transaction, arrangement or agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the Holders of the Notes in any material respect than the original transaction, arrangement or agreement as in effect on the Issue Date;
(a) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, 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 Unrestricted Subsidiaries in the ordinary course of business;
(x) any transaction effected as part of a Qualified Receivables Financing;
(xi) the sale or issuance of Equity Interests (other than Disqualified Stock) of the Issuer;
(xii) payments by the Issuer or any of its Restricted Subsidiaries to Investcorp and the Sponsor or any of its Affiliates (whether or not such Persons are Affiliates of the Company) (A) made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to agreements with the Sponsor described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Issuer in good faith;
(xiii) any contribution to the capital of the Issuer (other than Disqualified Stock);
(xiv) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest or otherwise participate in such Person;
(xv) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or Holdings or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person;
(xvi) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 3.4(b)(xii);
(xvii) transactions to effect the Transactions and the payment of all transaction, underwriting, commitment and other fees and expenses related to the Transactions;
(xviii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xix) 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 the Company Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5xx) any agreement in effect on employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Closing Date Issuer or any of its Restricted Subsidiaries with current, former or future officers and employees of the Issuer, Holdings or any of their respective Restricted Subsidiaries and the payment of compensation to officers and employees of the Issuer, Holdings or any of their respective Restricted Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), in each case in the Recapitalization Agreement, ordinary course of business;
(xxi) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and the Company and the Brevard lease agreement) Issuer or any amendment thereto (of its Subsidiaries, so long as any such amendment transaction is not disadvantageous to 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;
(xxii) the Holders in any material respect) existence of, or the performance by the Issuer or any payment of its Restricted Subsidiaries of their obligations under the terms of, any customary registration rights agreement to which they are a party or other transaction contemplated by any of become a party in the foregoingfuture; and
(6xxiii) Debt permitted investments by Section 4.03(b)(x) to the extent such Debt is on terms that, taken as a whole, are no less favorable to Sponsor in securities of the Company Issuer or the relevant any Restricted Subsidiary than those that would have been obtained (and payment of reasonable out-of-pocket expenses incurred by the Sponsor in a comparable transaction with an unrelated Personconnection therewith).
Appears in 1 contract
Sources: Indenture (Solgar)
Transactions with Affiliates. (a) The Company Issuer shall ---------------------------- not, and 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 Issuer (each of the foregoing, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted 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
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, the Issuer delivers to the Trustee a resolution adopted in good faith by the majority of the Board Resolution of Directors of the Issuer, approving such Affiliate Transaction and set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingabove.
(b) The provisions of Section 4.07(a) shall not prohibit (and, apply to the following shall not be deemed to be Affiliate Transactions):following:
(1i) transactions between or among the Company Issuer and/or any of its Restricted SubsidiariesSubsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and any merger, consolidation or amalgamation of the Issuer and any direct parent of the Issuer; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2ii) Permitted Investments and Restricted Payments that are permitted by Section 4.044.04 and Permitted Investments;
(3iii) employment agreements(x) the entering into of any agreement (and any amendment or modification of any such agreement so long as, employee benefit plans and related arrangements entered into in the ordinary course good faith judgment of business the Board of Directors of the Issuer, any such amendment is not disadvantageous to the holders when taken as a whole, as compared to such agreement as in effect on the Issue Date) to pay, and the payment of, management, consulting, monitoring and advisory fees to the Sponsors in an aggregate amount in any fiscal year not to exceed the greater of (A) $1.75 million and (B) 2.0% of EBITDA of the Issuer and its Restricted Subsidiaries for the immediately preceding fiscal year, plus out-of-pocket expense reimbursement; provided, however, that any payment not made in any fiscal year may be carried forward and paid in the following two fiscal years and (y) the payment of the present value of all payments and other transactions contemplated therebyamounts payable pursuant to any agreement described in clause (iii)(x) of this Section 4.07(b) in connection with the termination of such agreement;
(4iv) any payments to Investcorp the payment of reasonable and its Affiliates (whether customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or not such Persons are Affiliates consultants of the CompanyIssuer or any Restricted Subsidiary, any direct or indirect parent of the Issuer;
(v) (A) payments by the Issuer or any of its Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to the agreements with the Sponsors described in the Offering Memorandum (as in effect on the Issue Date, or any amendment thereto that is not materially adverse as a whole to the Issuer) or (y) approved by a majority of the Board of Directors of the Company Issuer in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5vi) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board of Directors of the Issuer in good faith;
(viii) any agreement as in effect on as of the Closing Issue 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 foregoing; and
(6) Debt permitted by Section 4.03(b)(x) to the extent such Debt is on terms thatagreement together with all amendments thereto, taken as a whole, are no less favorable is not more disadvantageous to the Company holders of the Notes in any material respect than the original agreement as in effect on the Issue Date) or any transaction contemplated thereby as determined in good faith by the Issuer;
(ix) the existence of, or the relevant performance by the Issuer or any of its Restricted Subsidiary 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 transaction, agreement or arrangement described in the Offering Memorandum and, in each case, 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 Issuer 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 Issue Date shall only be permitted by this clause (ix) 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 holders of the Notes in any material respect than those that would the original transaction, agreement or arrangement as in effect on the Issue Date;
(x) the execution of the Refinancing Transactions, and the payment of all fees and expenses related to the Refinancing Transactions, including fees to the Sponsors, which are described in the Offering Memorandum or as contemplated by the Refinancing Documents;
(xi) (A) transactions with 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, which are fair to the Issuer and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Issuer, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry norm;
(xii) any transaction effected as part of a comparable transaction Qualified Receivables Financing;
(xiii) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person;
(xiv) 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 the Issuer or any direct or indirect parent of the Issuer or of a Restricted Subsidiary of the Issuer, as appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement that complies with Section 4.04(b)(xii);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary course of business;
(xxi) any employment agreements entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(xxii) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of the Issuer in an unrelated PersonOfficers’ Certificate) for the purpose of improving the consolidated tax efficiency of the Issuer and its Subsidiaries and not for the purpose of circumventing any provision set forth in this Indenture; and
(xxiii) the execution of the Refinancing Transactions and the payment of all fees and expenses related to the Refinancing Transactions.
Appears in 1 contract
Sources: Indenture (Mariner, LLC)
Transactions with Affiliates. (a) The Company shall ---------------------------- not, and 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 foregoingCompany (each, an "“Affiliate Transaction")”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction in arm’s-length dealings by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee Trustee: (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, a resolution of the Board Resolution of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members disinterested members, if any, 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 $10.0 25.0 million, an a written opinion as to the fairness to the Holders Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an investment bankingindependent accounting, appraisal or accounting investment banking firm of national standing.
(b) . The provisions of Section 4.07(a) shall not prohibit (and, the following items shall not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of the prior paragraph:
(1i) transactions between reasonable (a) directors’ fees and indemnification and similar arrangements, (b) employee, officer or among the Company and/or its Restricted Subsidiaries;
director loans, advances, salaries, bonuses and employment, non-competition and confidentiality agreements (2including indemnification arrangements), and (c) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
(3) employment agreementscompensation, confidentiality or employee benefit plans arrangements (including stock option plans) and related incentive arrangements with any officer, director or employee entered into in the ordinary course of business and all payments and other transactions contemplated thereby(including customary benefits thereunder);
(4ii) any payments to Investcorp transactions between or among the Company and its Affiliates Restricted Subsidiaries;
(whether or not such Persons are Affiliates iii) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or indirectly, an Equity Interest in, or controls, such Person;
(Aiv) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof;
(v) issuances and sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company or the receipt of the proceeds of capital contributions in respect of Equity Interests;
(vi) Restricted Payments permitted by the provisions of this Indenture described in Section 4.7 hereof or Permitted Investments;
(vii) transactions pursuant to agreements or other arrangements, including the Management Agreement, each as in effect on the Issue Date, and as the same may be amended, modified or replaced from time to time so long as such amendment, modification or replacement is no less favorable to the Company and the Restricted Subsidiaries in any material respect than the original agreement or arrangement in effect on the date of the Indenture;
(viii) payments made by the Company or any Restricted Subsidiary to any Principal Related Party for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, which payments are approved by a majority of the disinterested members, if any, of the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesfaith;
(5ix) any agreement transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in effect on each case in the Closing Date (including ordinary course of business and otherwise in compliance with the Recapitalization Agreement, terms of the Services Agreement (as amended on April 15, 1998) between the Berkshire Companies Limited Partnership and Indenture that are fair to the Company and its Restricted Subsidiaries, in 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 reasonable determination of the foregoingBoard of Directors of the Company, or are on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party;
(x) sales or transfer of dispositions of Receivables and Related Assets to a Securitization Entity and acquisitions of Investments in connection therewith; and
(6xi) Debt permitted by Section 4.03(b)(x) to transactions involving the extent provision of services or outsourcing of business functions entered into the ordinary course of business with Persons under common control with the Company; provided that the terms of such Debt is on terms that, taken as a whole, transactions are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction in arm’s-length dealings by the Company or such Restricted Subsidiary with an unrelated Person.
Appears in 1 contract
Transactions with Affiliates. (a) The Except for transactions the terms of which are set forth in agreements existing on the Issue Date, the Company shall ---------------------------- may not, and shall may not permit any of its Restricted Subsidiaries toSubsidiary, make any payment todirectly or indirectly, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or to enter into any transactions (or make series of related transactions) with an Affiliate or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each Related Person of the foregoing, Company (other than the Company or a Wholly-Owned Restricted Subsidiary) (an "Affiliate TransactionAFFILIATE TRANSACTION"), ) unless:
(i) such Affiliate Transaction is on terms that, taken as a whole, 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 Subsidiary, as the case may be, with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving aggregate consideration in excess of $3.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (bA) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 500,000, a certificate of the Chief Executive officer of the Company to the effect that such Affiliate Transaction complies with clause (i) above; and (B) with respect to any Affiliate Transaction involving aggregate consideration in excess of $5 million, an opinion as to the fairness to the Holders Company or such Restricted Subsidiary, as the case may be, of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standingIndependent Financial Advisor.
(b) The provisions of Notwithstanding the foregoing Section 4.07(a) shall not prohibit (and4.8(a), the following shall not be deemed not to be Affiliate Transactions)::
(1i) transactions 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 compensation arrangements entered into in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and (B) of annual management, consulting and advisory fees and related expensesCompany;
(5ii) any agreement in effect on the Closing Date (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998) transactions solely between the Berkshire Companies Limited Partnership and or among the Company and the Brevard lease agreementRestricted Subsidiaries;
(iii) Restricted Payments permitted by Section 4.5;
(iv) Investments by an Affiliate or Related Person of the Company in the Capital Stock (other than Disqualified Stock) of the Company 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 foregoingRestricted Subsidiary; and
(6v) Debt permitted by Section 4.03(b)(x) to transactions contemplated under 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 with an unrelated PersonPlan of Reorganization.
Appears in 1 contract
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction"), unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, 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; and
Person and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Closing Date involving aggregate consideration in excess of $3.0 million, a resolution of the Board Resolution of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors and (b) with respect to any Affiliate Transaction involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, and the following shall not be deemed to be Affiliate Transactions):
(1) the provision of administrative or management services by the Company or any of its officers to any of its Restricted Subsidiaries in the ordinary course of business, (2) any employment agreement, collective bargaining agreement, employee benefit plan, related trust agreement or any similar arrangement heretofore or hereafter entered into in the ordinary course of business, (3) transactions between or among the Company and/or its Restricted Subsidiaries;
, (24) Permitted Investments and Restricted Payments that are permitted by Section 4.04;
, (35) employment agreementspayment of compensation to employees, employee benefit plans and related arrangements entered into officers, directors or consultants in the ordinary course of business, (6) maintenance in the ordinary course of business (and all payments required thereby) of benefit programs, or arrangements for employees, officers or directors, including vacation plans, health and other transactions contemplated thereby;
life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements and retirement or savings plans and similar plans, (47) loans or advances to employees (or guarantees of third party loans to employees) in the ordinary course of business, (8) sales of Receivables to a Receivables Subsidiary, (9) the payment of annual management, consulting and advisory fees and related expenses to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company), (10) payments by the Company or any payments of its Restricted Subsidiaries to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors of the Company in good faith and faith, (B) of annual management, consulting and advisory fees and related expenses;
(511) any tax sharing agreement as in effect on the Closing Date and any other agreement as in 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 thereby (including distributions by any the Company to Holding to effect the Recapitalization), (12) the payment of all fees and expenses related to the Recapitalization, (13) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company or 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 each case in the reasonable determination of the foregoing; and
Board of Directors of the Company or the senior management thereof, and (614) Debt Indebtedness permitted by Section 4.03(b)(x4.03(b)(vi) or to the extent such Debt Indebtedness is on terms that, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction with an unrelated Person, Section 4.03(b)(xii).
Appears in 1 contract
Transactions with Affiliates. (a) The Company shall ---------------------------- Issuer will not, and shall 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 (each of the foregoingIssuer (each, an "“Affiliate Transaction")”) involving aggregate payments or consideration in excess of $5.0 million, unless:
(i1) such the Affiliate Transaction is on terms that, taken as a whole, that are no less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated PersonPerson (as determined in good faith by the Board of Directors or a member of senior management of the Issuer); and
(ii2) the Company Issuer delivers to the Trustee Trustee:
(aA) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 15.0 million, a resolution of the Board Resolution of Directors of the Issuer set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors and of the Issuer; and, in addition,
(bB) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 25.0 million, a written opinion of an accounting, appraisal or investment banking firm of international standing, or other recognized independent expert of international standing with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion as to is required, stating that the fairness to the Holders transaction or series of such Affiliate Transaction related transactions is (i) fair from a financial point of view issued by taking into account all relevant circumstances or (ii) on terms not less favorable than might have been obtained in a comparable transaction at such time on an investment banking, appraisal or accounting firm of national standingarm’s length basis from a Person who is not an Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall items will not be deemed to be Affiliate Transactions):Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, collective bargaining agreement, consultant, employee benefit or indemnification arrangements with any employee, consultant, officer or director of the Issuer or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans (and any issuance or awards or grants in cash, securities or otherwise in connection therewith), entered into in the ordinary course of business;
(2) transactions between or among the Company Issuer and/or its Restricted Subsidiaries;
(23) Permitted Investments and transactions in the ordinary course of business with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Issuer solely because the Issuer owns, directly or through a Restricted Payments that are permitted by Section 4.04Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of Officers, directors, employees or consultants of the Issuer or any of its Restricted Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Issuer to Affiliates of the Issuer and granting of registration rights or entry into a stockholders agreement with respect to the Issuer’s Equity Interests;
(6) any Investment (other than a Permitted Investment) or other Restricted Payment, in either case, that does not violate Section 4.07 hereof;
(7) Management Advances and waivers with respect thereto and the payment of Management Fees;
(8) any Permitted Investments (other than Permitted Investments described in clauses (3) employment agreementsof the definition thereof);
(9) the incurrence of any Subordinated Shareholder Debt and any amendment, employee benefit plans waiver or other transaction with respect thereto in compliance with the other provisions of this Indenture, the Collateral Trust Deed, the North American Intercreditor Agreement or Additional Intercreditor Agreement;
(10) transactions pursuant to, or contemplated by any agreement in effect on the Issue Date and related arrangements entered into transactions pursuant to any amendment, modification or extension to such agreement, so long as such amendment, modification or extension, taken as a whole, is not more disadvantageous in any material respect to the Holders than the original agreement as in effect on the Issue Date (as determined in good faith by the Board of Directors or a member of senior management of the Issuer) and transactions or agreements described in the section of the Offering Memorandum entitled “Related Party Transactions”;
(11) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and all payments and other transactions contemplated thereby;
(4) any payments otherwise in compliance with the terms of this Indenture that are fair to Investcorp and its Affiliates (whether the Issuer or not such Persons are Affiliates the Restricted Subsidiaries, in the reasonable determination of the Company) (A) for any financial advisory, financing, underwriting or placement services or in respect members of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company in good faith and (B) of annual managementIssuer or the senior management thereof, consulting and advisory fees and related expensesor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(512) any agreement in effect on the Closing Date payments or other transactions (including the Recapitalization Agreement, the Services Agreement (as amended on April 15, 1998pursuant to a tax sharing agreement or similar arrangement) between the Berkshire Companies Limited Partnership Issuer and any other Person or a Restricted Subsidiary and any other Person with which the Company and Issuer or any of its Restricted Subsidiaries files a consolidated tax return or with which the Brevard lease agreementIssuer or any of its Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any amendment thereto (so long as tax advantageous group contribution made pursuant to applicable legislation; provided, however, that any such amendment is payments do not disadvantageous exceed the amounts of tax that would be payable by the Issuer and its Restricted Subsidiaries on a stand-alone basis;
(13) any transaction effected as part of a Qualified Receivables Transaction;
(14) any contribution to the Holders capital of the Issuer in any material respectexchange for Capital Stock of the Issuer (other than Disqualified Stock and preferred stock);
(15) transactions between the Issuer or any payment of its Restricted Subsidiaries and any Person, a director of which is also a director of the Issuer or any direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent, as the case may be, on any matter involving such other Person;
(16) any transactions which the Issuer or any of its Restricted Subsidiaries delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of international standing, or other transaction contemplated by any recognized independent expert of international standing with experience appraising the terms and conditions of the foregoing; and
type of transaction or series of related transactions for which an opinion is required, stating that the transaction or series of related transactions is (6i) Debt permitted by Section 4.03(b)(xfair from a financial point of view taking into account all relevant circumstances or (ii) to the extent such Debt is on terms that, taken as a whole, are no not less favorable to the Company or the relevant Restricted Subsidiary than those that would might have been obtained in a comparable transaction with at such time on an unrelated Personarm’s length basis from a Person who is not an Affiliate; and
(17) pledges of Equity Interests of Unrestricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
Transactions with Affiliates. (a) The Company shall ---------------------------- will not, and shall will not permit any of its Restricted Subsidiaries toto enter into, make renew or extend any payment totransaction (including, without limitations, the purchase, sale, lease or exchange of property or assets, or sell, lease, transfer the rendering of any service) with any Affiliate of the Company or otherwise dispose of any of its properties Restricted Subsidiaries, in each case, involving consideration in excess of $25.0 million (an “Affiliate Transaction”), except upon terms no less favorable to the Company or assets such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such an Affiliate.
(b) The foregoing limitation does not limit, and will not apply to:
(1) transactions (A) approved by the conflicts committee of the board of directors of Holdings (so long as such committee is comprised exclusively of independent directors) or (B) for which the Company or any Restricted Subsidiary delivers to the Trustee a written opinion of an independent qualified real estate appraisal firm or a nationally recognized investment banking, accounting or appraisal firm, stating that the transaction is fair to the Issuers or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely among the Company and any of its Restricted Subsidiaries or solely among Restricted Subsidiaries of the Company;
(3) any payments or other transactions pursuant to any tax-sharing agreement between the Company and Holdings, and any transactions undertaken for the purpose of improving the consolidated tax efficiency of any parent entity of the Company and/or the Restricted Subsidiaries (provided that such transactions, taken as a whole, are not materially adverse to the Company and the Restricted Subsidiaries (as determined by the Company in good faith));
(4) any Restricted Payments or Investments not prohibited by Section 4.06 hereof;
(5) payments or other transactions pursuant to the Partnership Agreement, Corporate Services Agreement, Initial Master Lease or any other agreements or arrangements in effect on the Issue Date or any amendment, modification, or purchase supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more disadvantageous to the Company and the Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;
(6) director’s fees and any property employment, consulting, service, severance or assets fromtermination agreement, or enter reasonable and customary indemnification arrangements, entered into by the Company (or make any direct or amend indirect parent company thereof) or any of its Restricted Subsidiaries with officers, directors, employees and consultants of the Company (or any direct or indirect parent company thereof) or its Restricted Subsidiaries that are Affiliates of the Company or its Subsidiaries and the payment of compensation, customary fees, perquisites and fringe benefits and the issuance of securities to such officers, directors, employees and consultants (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans), or loans and advances to any officer, director or employee, in the ordinary course of business, so long as such loans have been approved by the Board of Directors of Holdings;
(7) commission, payroll, reasonable out-of-pocket costs, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of the Company or any of its Subsidiaries to the extent attributable to the ownership, management or operation of the Company and its Subsidiaries;
(8) the issuance, sale or transfer, and transactions related to the issuance, sale or transfer, of Equity Interests of the Company to Affiliates, including in connection with capital contributions by such Affiliates to the Company or any Restricted Subsidiary;
(9) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(10) any transactions with MGM or any of its Affiliates pursuant to the contracts or agreements described in the section entitled “Certain Relationships and Related Party Transactions” in the Holdings prospectus filed with the Commission on April 21, contract2016, agreementFile No. 333-120322, understandingwhich section is incorporated by reference therein, loanor any amendment, advance modification, extension or guarantee supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more disadvantageous to the Company and the Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;
(11) the consummation of, and the payment of fees in connection with, any of the Formation Transactions, the MGM National Harbor Transaction or any transactions pursuant to or contemplated by the Master Contribution Agreement or Master Transaction Agreement and any other contracts or agreements related to the Formation Transactions and MGM National Harbor Transaction and such transactions as are generally described in the Offering Memorandum, the Current SEC Filings and the section entitled “Certain Relationships and Related Party Transactions” in the Holdings prospectus filed with the Commission on April 21, 2016, File No. 333-120322, which section is incorporated by reference therein;
(12) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(13) (i) license or lease agreements with any Unrestricted Subsidiary or joint venture on terms which, taken as a whole together with all related transactions with such Unrestricted Subsidiary or joint venture, are commercially reasonable, (ii) other agreements and transactions in the ordinary course of business (and reasonable extensions of such course of business) with, or for the benefit of, any Affiliate Unrestricted Subsidiary or joint venture that are commercially reasonable, and (iii) any agreement by an Unrestricted Subsidiary or joint venture to pay management, development or other similar fees to the Company or a Subsidiary Guarantor, directly or indirectly, relating to the provision of management services, overhead, sharing of customer lists and customer loyalty programs; in each case contemplated by this clause (13), to the extent such transactions are not, individually or in the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, or to the Holders of the foregoingNotes, an "Affiliate Transaction"), unless:as determined by the Company in good faith;
(14) transactions contemplated by each applicable Transfer Agreement;
(15) agreements with joint ventures and Unrestricted Subsidiaries to facilitate arrangements related to (i) easements, exceptions, reservations, or other agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, trails, walkways, traffic signals, drainage, irrigation, water, electricity and sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, and other like purposes affecting Property, facilities, or equipment which individually or in the aggregate do not materially burden or impair the fair market value or use of such Affiliate Transaction Property for the purposes for which it is on terms thator may reasonably be expected to be held or (ii) easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of Property in or adjacent to a neighboring development, shopping center, utility company, public facility or other projects affecting Property which individually or in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;
(16) future leases and subleases between MGM or its Subsidiaries and the Company or its Restricted Subsidiaries (provided that such transactions, taken as a whole, are no less favorable not materially adverse to the Company or and the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction Subsidiaries (as determined by the Company or such Restricted Subsidiary with an unrelated Person; and
(iiin good faith)) the Company delivers and to the Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date involving extent such leases and subleases involve aggregate consideration payments in excess of $3.0 25.0 million, a Board Resolution certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been leases or subleases are approved by a majority the conflicts committee of the members board of the Board directors of Directors and Holdings (b) with respect to any Affiliate Transaction involving aggregate consideration in excess so long as such committee is comprised exclusively of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment banking, appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and, the following shall not be deemed to be Affiliate Transactions):
(1) transactions between or among the Company and/or its Restricted Subsidiariesindependent directors);
(217) Permitted Investments leases or subleases not interfering in any material respect with the ordinary conduct of the business of the Company and Restricted Payments that are permitted by Section 4.04;
the Subsidiary Guarantors (3which, for the avoidance of doubt, includes operating subleases) employment agreements, employee benefit plans and related arrangements entered into licenses or sublicenses of Intellectual Property made in the ordinary course of business business, and all payments termination of leases (other than the Initial Master Lease) and other transactions contemplated thereby;Swap Contracts in the ordinary course of business; or
(418) any payments to Investcorp and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) 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 approved by the Board of Directors Indebtedness of the Company in good faith and (B) of annual management, consulting and advisory fees and related expenses;
(5) any agreement in 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 foregoing; and
(6) 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 Restricted Subsidiary owed to the Company or any Restricted Subsidiary; provided that (except to the relevant extent prohibited by applicable Gaming Law) Indebtedness of the Company or any Subsidiary Guarantor owing to a Restricted Subsidiary than those that would have been obtained is not a Subsidiary Guarantor shall be subordinated to the Notes. Notwithstanding the foregoing, any transaction or series of related transactions covered by Section 4.10(a) hereof and not covered by clauses (2) through (18) of Section 4.10(b) hereof the aggregate amount of which exceeds $25.0 million in a comparable transaction with an unrelated Personvalue must be approved or determined to be fair in the manner provided for in clause (1)(A) or (B) above.
Appears in 1 contract
Sources: Indenture (MGM Growth Properties Operating Partnership LP)
Transactions with Affiliates. (a) The Company 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 (each of the foregoing, an "Affiliate Transaction")) involving aggregate payments or consideration in excess of $5.0 million, unless:
unless (i) such Affiliate Transaction is on terms that, taken as a whole, that are materially 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; and
Person and (ii) the Company delivers to the Senior Note Trustee (a) with respect to any Affiliate Transaction entered into after the first Issue Date or series of related Affiliate Transactions involving aggregate consideration in excess of $3.0 10.0 million, a resolution of the Board Resolution of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the 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 $10.0 25.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an investment bankingaccounting, appraisal or accounting investment banking firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and. Notwithstanding the foregoing, the following items shall not be deemed to be Affiliate Transactions):
: (1i) any employment agreement or other compensation plan or arrangement for employees entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary; (ii) transactions between or among the Company and/or its Restricted Subsidiaries;
, (2iii) Permitted Investments and payment of reasonable fees to officers, directors, employees or consultants of the Company; (iv) Restricted Payments that are permitted by by, and Investments that are not prohibited by, Section 4.04;
4.07 hereof; (3v) employment agreementsindemnification payments made to officers, employee benefit plans directors and employees of the Company or any Restricted Subsidiary pursuant to charter, bylaw, statutory or contractual provisions; (vi) the payment of customary annual management, consulting and advisory fees and related arrangements entered into in expenses to ▇▇▇▇▇▇ Merchant Bank and its Affiliates; (vii) payments by the ordinary course Company or any of business and all payments and other transactions contemplated thereby;
(4) any payments its Restricted Subsidiaries to Investcorp ▇▇▇▇▇▇ Merchant Bank and its Affiliates (whether or not such Persons are Affiliates of the Company) (A) made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including including, without limitation, in connection with acquisitions or divestitures, divestitures which payments are approved by a majority of the Board of Directors of the Company in good faith and faith; (Bviii) the existence of, or the performance by the Company or any of annual managementits Restricted Subsidiaries of its obligations under the terms of, consulting and advisory fees and related expenses;
(5) any stockholders' agreement in effect on the Closing Date (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Recapitalization Agreementdate of the closing of the Acquisition and any similar agreements which it may enter into thereafter; provided, however, that the Services Agreement (as amended on April 15existence of, 1998) between or the Berkshire Companies Limited Partnership and performance by the Company and the Brevard lease agreement) or any of its Restricted Subsidiaries of obligations under any future amendment thereto to any such existing agreement or under any similar agreement entered into after the date of the closing of the Acquisition shall only be permitted by this clause (so long as viii) to the extent that the terms of any such amendment is or new agreement are not otherwise disadvantageous to the Holders in any material respect; (ix) or any payment or other transaction contemplated by any transactions pursuant to the terms of the foregoingTransaction Documents in effect on the date of the closing of the Acquisition; and
(6x) Debt permitted by Section 4.03(b)(xtransactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) to and otherwise in compliance with the extent terms of this Senior Note Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such Debt is on terms thattransactions), taken as a whole, are materially no less favorable to the Company or the relevant its Restricted Subsidiary 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 the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (xi) guarantees of performance by the Company and its Restricted Subsidiaries of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Obligations in respect of borrowed money; and (xii) pledges of Equity Interests of Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries.
Appears in 1 contract