ESOP Transaction Clause Samples
ESOP Transaction. Prior to the Closing, you shall have received true ---------------- and correct copies of the Plan Documents and all other documents having the legal effect of governing the terms or administration of the ESOP; all the terms and provisions thereof shall be satisfactory to you in form and substance (including schedules and exhibits thereto); all such agreements, documents and instruments shall be in full force and effect and no term or condition thereof shall have been amended, modified or waived except with your prior consent; the Trustee shall have made appropriate determinations satisfactory to you establishing that neither the sale of the Notes to you nor the purchase of the Employer Capital Stock as contemplated by the Stock Purchase Agreement nor the consummation of the transactions contemplated by this Agreement is or will constitute a "prohibited transaction" as such term is defined in section 406 of ERISA or section 4975 of the Code for which there is no exemption; and the purchase of Employer Capital Stock in the ESOP Transaction shall be duly and validly consummated concurrently with the Closing hereunder. Except as affected by the transactions contemplated hereby, all conditions precedent to the consummation of the transactions contemplated by the Plan Documents shall have occurred, all governmental authorizations, consents, approvals, exemptions or other actions required in connection with such transactions shall have been duly received or taken (except for the determination letter from the Internal Revenue Service described in paragraph 5G and the registrations and filings referred to in paragraph 10L) and such transactions shall have been consummated substantially in accordance with the terms of such documents. All material matters relating to the ESOP, including, without limitation, the amount and the deductibility of contributions by the Company to the ESOP, the use and sufficiency of such contributions to pay the Notes and the excludibility of 50% of the interest paid by the ESOP on the Notes from your Federal Gross Income, shall be satisfactory to you.
ESOP Transaction. Any claim of whatever nature against the Bank arising from the administration of the ESOP or the Trust or any assets thereof, or relating in any manner to this Agreement, any other Loan Document, the Loan or the ESOP Transaction, asserted by any participant or beneficiary of the ESOP or the Trust or by any shareholder of the Borrower, which loss or expense under this paragraph (f) occurs after a judicial determination or governmental directive, provided that, in the case of this paragraph (f), the Bank shall be indemnified for costs and attorneys’ fees incurred by the Bank prior to and irrespective of the occurrence of such judicial determination or governmental directive; provided that the Borrower shall have no obligation to indemnify an Indemnified Party hereunder in respect of the foregoing to the extent the same shall arise directly from the gross negligence or willful misconduct of such Indemnified Party. The obligations of the Borrower under this Section shall survive, and shall continue to be enforceable notwithstanding, the termination of this Agreement and the payment in full or cancellation of the Obligations.
ESOP Transaction. The members of Tenant may exchange their membership interests in Tenant for stock in a new holding corporation ("NewCo"), as long as NewCo will own at least fifty percent (50%) of the ownership interest in Tenant. The stockholders of NewCo may then sell their shares to a newly formed employee stock ownership plan ("ESOP"), which ESOP will then become the sole shareholder of NewCo. The foregoing transaction is herein referred to as the “ESOP Transaction.” At the time of the ESOP Transaction, NewCo will join in the Guaranty as an additional Guarantor. NewCo will be required to perform full financial audits annually and provide the results of such audit to Landlord. Once the EBITARM of NewCo, after deduction of all debt and other obligations of both Newco and the ESOP (including without limitation any debt incurred by the ESOP in connection with the ESOP Transaction) is at least 1.40 times the Rent (the “ESOP Coverage Requirement”) for three (3) full calendar years (the “Test Period”), and provided either (a) Tenant has met the Coverage Ratio for the same Test Period, or (b) Tenant provides Landlord a letter of credit for one (1) full year’s Minimum Rent and Impositions meeting the requirements of Section 20.3 above (the “ESOP Letter of Credit”), which ESOP Letter of Credit shall be replaced at least thirty (30) days prior to each annual increase in Minimum Rent with a new ESOP Letter of Credit in an amount equal to the increased Minimum Rent for the forthcoming year plus the Impositions for the last full calendar year prior to the date of the new ESOP Letter of Credit, Landlord shall release the Guarantors from the Guaranty. Provided that no Event of Default or event that with the giving of notice or passage of time would became an Event of Default then exists, Landlord shall release the ESOP Letter of Credit at such time as the Tenant thereafter meets the ESOP Coverage Requirement for the Test Period (which shall be tested going forward from the date the ESOP Letter of Credit is initially posted). Notwithstanding the foregoing, in the event the ESOP Transaction would involve a pledge of the assets of Tenant to secure debt or make Tenant a co-signatory on any debt in connection with the ESOP Transaction, the same shall be subject to the reasonable approval of Landlord.